A situation may arise where someone is unable to make medical or financial decisions for himself or herself and has no legally designated decision-maker. Perhaps that person never appointed a power of attorney, never had the capacity to appoint a power of attorney, or has a power of attorney who is no longer appropriate or has acted improperly. Under such circumstances, pursuit of a guardian to oversee that person and his finances may be an appropriate and effective course of action. A guardian can be appointed by the court to make decisions for another.
The law allows “any person interested in the alleged incapacitated person’s welfare” to petition for guardianship. That petitioner bears the burden of proving the guardianship is necessary. The standard of proof for establishing a guardianship is “clear and convincing evidence,” which has been called the second highest standard of proof next to “beyond a reasonable doubt” used in criminal proceedings. Thus, before pursuing guardianship, one should make sure they are able to show the following by clear and convincing evidence: incapacity; need for guardianship; and that there are not available, adequate, less restrictive alternatives to the guardianship. The petitioner should also consider who is the best person or persons to serve as guardian.