casemark/guardianship-petition

Petition for Guardianship

Drafts a petition establishing legal guardianship over an incapacitated adult or minor, tailored to the filing jurisdiction's statutory framework.

Prerequisites

Collect before drafting:

• Jurisdiction — state, county, correct court division (probate, family, surrogate's)
• Parties — full legal names, DOBs, addresses, petitioner-ward relationship
• Medical evidence — physician certificates, capacity evaluations, functional assessments
• Financials — ward's assets, income, liabilities (if estate guardianship)
• Prior instruments — existing POAs, advance directives, representative payee arrangements, prior guardianship orders
• Notice list — all persons entitled to notice with names and addresses (spouse, parents, adult children, siblings, agencies)

Quick Start

1. Identify jurisdiction and confirm court division
2. Gather party information and medical evidence
3. Draft petition sections in order below
4. Attach all required exhibits
5. Verify against jurisdiction-specific statutory requirements

Petition Sections

Draft using consecutively numbered paragraphs throughout.

1. Caption & Case Header

Format per local court rules. Include: full court name with division, case number (blank if unassigned), case title ("In the Matter of [Ward], An Alleged Incapacitated Person" or local convention), petitioner block, document title specifying person/estate scope.

2. Jurisdiction & Venue

• Cite state guardianship statute authorizing filing
• Allege ward's domicile/residence establishing venue
• Establish court's subject-matter jurisdiction

3. Petitioner's Standing

• Relationship to proposed ward
• Basis of knowledge of ward's condition
• Steps taken before seeking guardianship
• Qualifications to serve (or nomination of alternative)
• Conflict-of-interest disclosures

4. Ward's Circumstances

| Category | Required Detail | |---|---| | Personal | Age, living situation, daily care needs, social support | | Medical | Diagnoses, functional limitations, cognitive status (reference attached physician certificate) | | Financial | Assets, income, liabilities, current management (if estate guardianship) | | Minors | Parental status (absence, incapacity, unfitness, death); why guardianship exceeds normal custody |

5. Incapacity Allegations

• Cite statutory definition of incapacity
• Allege specific functional deficits with supporting facts:
  • Cannot manage personal health/safety
  • Cannot make informed medical decisions
  • Cannot manage financial affairs
  • At risk of exploitation, abuse, or neglect
• Use person-first language; focus on functional impairments, not diagnostic labels

6. Least Restrictive Alternative Analysis

Explain why each less-restrictive option is insufficient:

| Alternative | Typical Basis for Insufficiency | |---|---| | Power of attorney | Ward lacks capacity to execute; existing POA revoked/inadequate | | Representative payee | Does not cover personal/medical decisions | | Supported decision-making | Ward's impairments exceed supported framework | | Voluntary services | Ward unable to consent or cooperate |

7. Scope of Authority Requested

Specify guardianship type. Enumerate only the powers needed.

Person: medical decisions, residential placement, access to records, consent/refusal of treatment, social decisions.

Estate: manage income/assets, pay debts, enter contracts, manage real property.

For limited guardianship, identify retained rights explicitly. Tailor powers narrowly to documented deficits.

8. Guardian Nomination

• Proposed guardian's name, address, relationship
• Experience, training, availability
• Criminal background / conflict disclosures per jurisdiction
• If professional/public guardian: explain why no suitable family member available
• Attach consent of proposed guardian

9. Notice & Interested Parties

• List all persons entitled to statutory notice
• Identify persons with unknown whereabouts (request alternative service)
• State compliance with pre-filing notice requirements

10. Verification & Signature

• Verification under penalty of perjury
• Signature lines for petitioner and attorney
• Notarization block if required
• Attorney bar number and contact information

Exhibits Checklist

• [ ] Physician certificate / medical affidavit
• [ ] Proposed guardian's consent and disclosure
• [ ] Financial inventory (if estate guardianship)
• [ ] Proposed order / letters of guardianship
• [ ] Notice list with addresses
• [ ] Filing fee or fee waiver
• [ ] Jurisdiction-specific mandatory forms

Pitfalls & Checks

• Jurisdiction controls everything — always confirm: statutory incapacity standard, required medical evidence format, investigation/visitor requirements, notice and waiting periods, bond requirements
• Evidentiary support — every factual allegation must tie to an identified exhibit; no conclusory statements
• Clear-and-convincing standard — most jurisdictions require this elevated burden; draft allegations accordingly
• Respectful tone — guardianship restricts fundamental liberty; demonstrate genuine necessity
• Bond and reporting — note bond requirements for estate guardianship and ongoing reporting obligations
• Emergency guardianship — if imminent harm exists, draft separate emergency petition with specific showing
• Mark uncertain citations — use [VERIFY] for any statute or rule not confirmed against current code