Frequently Asked Questions about Guardianship

How do I go about establishing a guardianship?

There is a legal procedure that must be followed in order to establish a guardianship. Once it has been determined that guardianship is the most appropriate solution, the first step is to contact an attorney. Your attorney will help you file a petition for guardianship and a court hearing will be set. Notices of the petition for guardianship and date of the hearing will be given to all interested parties, including the proposed ward. At the hearing, the court decides if the proposed ward needs a guardian, the level of guardianship (limited or general) and who will be the guardian.

What happens before the court hearing?

The attorney representing the person seeking the guardianship (the petitioner) will continue to gather information and evidence that supports the need for establishing guardianship. The court will appoint a guardian ad litem, a visitor, and an expert examiner (physician, psychiatrist, advanced practice registered nurse, physician assistant or psychologist) to evaluate the need for and appropriateness of establishing a guardianship for the proposed ward.

The guardian ad litem (GAL) is an attorney who represents the proposed ward. The GAL visits with the proposed ward and evaluates all of the available information on the case. The GAL explains the guardianship proceedings and the right to retain an attorney to the proposed ward, The GAL then files a report and recommendations with the court. The GAL makes recommendations based on what he/she feels are in the best interests of the proposed ward.
The visitor is usually a social worker or nurse who visits with the proposed ward, his/her current (future, if applicable) residence and the proposed guardian. The visitor may meet with others who are involved in the case and examine information pertinent to the case. The visitor then files a report and recommendations with the court. The recommendations included in the report are: the degree that the proposed ward's disability has on making or communicating decisions; whether the proposed guardian should be appointed by the court; powers to be granted by the court to the proposed guardian; and an assessment of the porposed ward to perform the activities of daily living.
The expert examiner examines or evaluates the proposed ward. His/Her recommendations and report are then filed with the court. The report includes a medical prognosis or psychological evaluationspecifying the severity and duration of any current incapacity or disability impacting the proposed ward.

What happens at the hearing?

All interested parties could and should attend the hearing. The proposed ward must attend unless very good and clear reasons for his/her absence are provided to the court. The court may hold the hearing at an alternative location such as a nursing home or hospital to ensure the proposed ward's attendance. The court must approve the proposed ward's absence.

The attorney representing the petitioner presents evidence to establish that the proposed ward is unable to make or communicate responsible decisions for his/her own well-being in all or certain areas of his/her life.
The court accepts and carefully considers the reports and recommendations filed by the visitor, guardian ad litem, and expert examiner.
Anyone involved in the case may testify to prove or disprove the need to establish guardianship.
Once the evidence has been presented and testimony has been given, the court must decide if there is clear and convincing evidence that the proposed ward is incapacitated and there are no other options available to safeguard the proposed ward's health, safety, and habilitation. If so, the court appoints a guardian who will be able to fulfill the assigned duties properly.

How do I know what authority I'll have as a guardian?

The court will issue orders and letters that specify the areas where the guardian does and does not have authority and responsibility. After the guardianship orders and letters have been signed and filed with the court, the guardianship becomes official.

Does it cost anything to set up a guardianship?

In order to protect the freedoms and rights of a proposed ward, the procedure to establish a guardianship is detailed, specific and requires the services of a number of professionals. The cost of setting up a guardianship includes attorney's fees, court costs, and fees for the guardian ad litem, visitor and the expert examiner. The cost to establish a guardianship can range from $1,000 to $3,000 or more, dependent on legal fees. In some cases, these costs are paid by the person who is petitioning for the court to establish a guardianship or if the court orders, the proposed ward may be required to pay. In some cases, certain fees can be paid by an outside agency or may even be waived. See Guardianship Establishment Funds under Resources.

As a guardian, will I be financially responsible for my ward?

You may have the authority to oversee and handle your ward's funds. You must make sure that your ward's money is spent to cover only his/her needs such as rent, clothing, and other bills. Unless you agree to take on more financial responsibility for your ward or are clearly negligent in handling your ward's funds, you have no personal financial responsibility. This is also true of any criminal behavior on the part of the ward.

Will my ward have to live with me?

You need to make arrangements for the care of your ward; you are not required to have your ward move into your home. You are responsible for seeing to the well-being and best interest of your ward.

As a guardian, do I have to make reports to the court?

Guardians are required to file an Annual Wellbeing Report, an Annual Financial Accounting and a Confidential Information Form with the court. The report forms are available from the probate office of the district court as well as the North Dakota Supreme Court Website. The reports consist of information about the physical and emotional condition of your ward, the services that the ward receives, any problems that have occurred since the last report, what the guardian has done for the ward, a summary of any medical decisions the guardian has made on behalf of the ward and an accounting of the ward's finances. Guardians are also required to file a Beginning Inventory of the ward's assets with the court.

As a guardian, do I have to make reports to the court?

As a guardian your primary responsibility is to ensure that your ward is receiving necessary and quality services. There are agencies and organizations that can provide assistance in obtaining these services. Some of these agencies and organizations are: Protection & Advocacy Project, Vulnerable Adult Protective Services of the North Dakota Department of Human Services, Legal Services of North Dakota, Department of Developmental Disabilities Division of the North Dakota Department of Human Services, Aging Services Division of the North Dakota Department of Human Services, Mental Health Association of North Dakota, area social services, the Guardianship Association of North Dakota, and professional guardians.