"Incompetence," for the purpose of appointing a guardian, must be established at a court hearing. A court will declare a prospective ward legally incompetent only if he suffers a physical or mental disability that prevents him from properly protecting his own property, health, safety or welfare. In some states, a court may find that a prospective ward partially incompetent; in that case, the court might grant, for example, only property management authority to the guardian.
The appointment process is initiated when someone petitions a court to be named guardian. In most states, the state district court sitting in the county where the proposed ward resides has jurisdiction over a guardianship petition. Once the petition is filed, the court will schedule a hearing. At the hearing the proposed guardian must establish that he is eligible to serve as a guardian, that the proposed ward is incompetent, and that no suitable alternatives to guardianship exist. The court may order an investigation into the character and past behavior of the guardian. Any interested party, including the proposed ward himself, may oppose the guardianship petition. If the petition is successful, the court will issue an order establishing the guardian/ward relationship.
In most states, either an individual or an organization such as a social service agency may serve as a guardian. A guardian must be at least 18 years old and must possess the ability and inclination to act in the best interests of the ward. The duties of a guardian include providing food and shelter, making financial decisions, making medical treatment decisions and making end-of-life decisions. Misconduct can subject the guardian to civil or even criminal liability.
Termination of Guardianship
A guardianship automatically terminates when the ward dies. It also terminates if the court determines that the ward no longer requires a guardian, or if the guardian is found to be unfit to act in the best interests of the ward. A guardian must seek the permission of the court before resigning, and he can be sanctioned for abandoning his duties without obtaining advance permission.