Instructions for Adult Guardianship Petition

Instructions for Adult Guardianship Petition

Introduction

Appointing a guardian for a person is a serious matter. It takes away the person’s freedom to make many of the important decisions in the person’s life.

Appointing a guardian should not be done unless there is no other alternative.

Lawyers

Before starting this process, it may help to talk to a lawyer who is familiar with guardianship procedure. If you are unsure about whether you should hire a lawyer, it is a good idea to talk to one about your case before you decide whether you can handle it alone. If you do not know a lawyer, you can call or write:

Lawyer Referral Service of the Alaska Bar Association
P.O. Box 100279, Anchorage, AK 99510-0279
Phone: 272-0352 or 800-770-9999 outside Anchorage (toll free within Alaska)

Costs of the Proceedings

See page 13 for information about who has to pay the costs involved in petitioning for appointment of a guardian.

Definitions of Some Terms Used in These Instructions

Incapacitated Person A person whose ability to receive and evaluate information or to communicate decisions is impaired to the extent that the person lacks the ability to provide the essential requirements for the person’s physical health or safety (health care, food, shelter, clothing, personal hygiene, and protection) without court-ordered assistance.

Petitioner: The petitioner is the person who signs the petition asking the court to appoint a guardian.

Respondent: The respondent is the person who is alleged to be incapacitated and in need of a guardian.

Ward: A ward is a person for whom a guardian has been appointed. (Thus, the “respondent” is called a “ward” after the judge appoints a guardian.)

How To File

Step 1. If you are asking the court to appoint a full guardian for an adult, fill out the attached Petition form (PG-100). The petition instructions begin on page 8.

If this is for a partial guardianship for an adult, then fill out PG-103 instead. Using PG-103, you can request that the court appoint a partial guardian who shall make decisions on limited issues, like housing, medical care, legal issues, finances, or services. This is different from a full guardianship where the guardian makes decisions on all of those issues.

If this is for a conservatorship for an adult, then fill out PG-104 instead. A conservatorship should be used if the respondent (incapacitated person) is unable to manage his or her property and affairs and has property that will be wasted or used up unless properly managed.

If this is an emergency, also fill out the Emergency Petition (PG-101) for appointment of a temporary guardian. See the PG-520 Packet for instructions about the emergency petition.

Note: A situation qualifies as an emergency only if the person for whom you want a guardian appointed needs immediate services to protect the person against serious injury, illness or disease, and the person is not capable of procuring the necessary services. The emergency appointment is temporary and will only permit the guardian to authorize those specific services.

Step 2. Make a copy of the Petition for yourself.

Step 3. File the original Petition at the superior court filing location nearest to where the respondent (the incapacitated person) lives, and pay the filing fee according to Administrative Rule 9(b)(2)(H). You can deliver the Petition to the court in person or mail it along with the filing fee. If you cannot afford this fee, ask the clerk for form TF-920, Request for Exemption from Payment of Fees.

If you change your address or phone number after you file the petition and before the court hearing, be sure to notify the court.

Step 4. Appointment of Attorney, Visitor, and Expert.

The court clerk will either give you or mail to you an Order for Appointments and Notice of Hearing (PG-110). In this order, the court will schedule a hearing on your petition and appoint people (or the Office of Public Advocacy) to perform the following three duties:

a. Attorney for Respondent. The respondent (the person for whom you want a guardian appointed) has a right to be represented by an attorney in the guardianship proceedings. If he/she cannot afford to hire an attorney, the court must appoint the Office of Public Advocacy (OPA) to represent him/her.

b. Court Visitor. The court visitor is a person appointed by the court to arrange for necessary evaluations to be done and prepare a written report for the court. The visitor will interview the respondent, you (the petitioner), anyone who seeks to be appointed as guardian, and other people who know about the respondent’s abilities.

c. Expert. The expert is a person who has expertise in the area of the respondent’s alleged incapacity.

Step 5. Notifying Others About the Hearing.

As petitioner, it is your responsibility to notify several other people about the hearing. When you receive the above order, do the following as soon as possible:

a. On page 1 of the Notice of Guardianship Hearing (PG-115), fill in the time and place of the hearing and the name of the judge or master who will preside.

b. On page 3 of the Notice form, fill in the names of all the specified relatives of the respondent (spouse, parents, adult children or other relatives) that you can locate. Also, fill in the names of the following other types of persons listed on the form:

• respondent’s conservator (if respondent has one),

• the person who currently has care and custody of respondent,

• respondent’s attorney (ask the court for the name and address),

• respondent’s guardian ad litem (if one has been appointed by the court),

• any person that the court has directed you to give notice to, and

• any other “interested person” (for example: anyone the respondent owes money to, anyone who has a “power of attorney” for the respondent, the “representative payee” for the respondent’s social security benefits, the trustee of any trust the respondent has established or of which the respondent is a beneficiary, etc.).

Check the boxes showing how the notice will be delivered to each person.

c. Make copies of the Notice and send the copies to all the people you listed on page 3 of the Notice. You must do this at least 14 days before the hearing.

(1) If the respondent’s spouse and parents are in Alaska, their copies must be sent by either certified mail with restricted delivery or by process server. If they are outside Alaska, the notice can be sent to them by first class mail.

(2) The notices to everyone else can be delivered by either first class mail or hand delivery by you or anyone else. If you use hand delivery, you must list who did (or will do) the delivery.

d. Proof That Notice Was Given. After the Notice has been sent to everyone, you must file proof with the court that this has been done. Before or at the time of the hearing, file the following proof with the court:

(1) For copies that you mailed by first class mail or hand delivered, file the original Notice with the court. The completed certificate of service with your signature on page 3 of the Notice is your proof of service. Keep a copy of the Notice for yourself.

(2) For copies that were delivered by a process server or by certified mail:

(a) If you use a process server, the process server will give you a "Return of Service" which lists the documents delivered, on whom and when they were delivered. File the original "Return of Service" with the court. Keep a copy for yourself.

(b) If you use certified mail, fill out form PG-117, Certificate of Service by Certified Mail. Fill out a separate PG-117 form for each person you serve by certified mail. Attach to it the original green card you got back from the Post Office, showing that the certified mail was delivered to the person to whom you sent it. File the original Certificate with the court. Keep a copy of the Certificate for yourself.

Step 6. Visitor’s Investigation and Expert’s Report.

Within 90 days after the petition is filed, the visitor must file an evaluation report with the court and give a copy of it to the respondent, the respondent’s attorney and to you. In order to prepare this report, the visitor must investigate several aspects of the respondent’s current situation, including the respondent’s present living arrangement and financial resources.

The visitor must deliver a copy of your petition to the respondent and explain what it means. The visitor will tell the respondent about the respondent’s rights, including the right to talk to an attorney (or an expert in the field of the respondent’s alleged incapacity) before answering any of the visitor’s questions. The visitor will tell the respondent how to contact the attorney appointed to represent the respondent if one has been appointed.

The visitor will then ask the respondent a number of questions in order to determine the respondent’s ability to care for himself/herself and the types of help the respondent needs. The visitor will also interview you (the petitioner) and other people who can provide information needed for the visitor’s report.

Any report by the court-appointed expert will be attached to the visitor’s report.

Step 7. Response to Visitor’s Report.

When you receive the visitor’s report, you have 10 days to file a written response to it if you want to. If you need more time, you can ask the court for it, but you must explain why you need the extra time. The respondent can also file a response within that 10-day time period.

Your response should include the following information:

a. A “case caption” (top of form) like the one on page 8 (including the name and location of the court, the name of the case, and the case number. Instead of “Petition for Appointment,” the title of your document should be “Petitioner’s Response to Visitor’s Report.”

b. The date of the visitor’s report.

c. The paragraph number of each section of the visitor’s report that you want to comment on and your comments on that section.

d. Your signature, printed name, address, and daytime telephone number.

e. A certification that you sent a copy of your response to the respondent’s attorney, the court visitor and any other interested parties.

Step 8. Court Hearing.

The hearing must be held within 120 days after you file your petition unless the court postpones the hearing for cause. The court might need to postpone the hearing, for example, if the case is contested and additional medical examinations for the respondent are needed.

The respondent has the right to be present at the hearing. Usually these hearings are closed to the public, but the respondent gets to choose whether the hearing will be open to the public or closed. Usually the hearing is before a judge or master alone, but the respondent can ask for a jury trial on the issue of incapacity if the respondent wants one.

At the hearing, the respondent has the right to present evidence and to cross-examine adverse witnesses. The respondent can remain silent (and not answer any questions) if the respondent wishes to.

As the petitioner, you have the burden of proving by clear and convincing evidence that the respondent is an “incapacitated person” and that there are no adequate alternatives to a full guardianship.

The hearing will usually proceed as follows:

a. The judge will identify everyone present (for the hearing record).

b. If an attorney for the petitioner or the respondent is present, the judge will ask the attorney the status of the case (whether it is contested or not).

c. The judge will ask if there are any additions or corrections to the Visitor’s Report and if there are any objections to it.

d. If the case is contested, the judge will ask whether the dispute is about the capacity of the respondent to take care of himself/herself or about who should be appointed guardian.

e. If the case is not contested, the judge may ask you questions in order to help the judge decide the following issues:

(1) whether the respondent needs a guardian,

(2) whether there are any alternative ways of taking care of the respondent’s needs without appointing a guardian, and

(3) who should be appointed guardian (considering the priorities for appointment set forth in the Alaska Statutes).

f. If the judge decides it is necessary to appoint a guardian, the judge must consider the respondent’s preference as to who should be appointed.

g. If the judge appoints a guardian, the judge will explain to the respondent that the respondent has the right to request, at a later time, that the guardian be dismissed or that the guardianship order be changed.

How to Fill out the Petition Form

Fill in the top of the form as shown in the following illustration:

Print clearly, using black ink.

Section 5. Financial Abuse Petition. Check the box indicating whether a petition to protect the respondent from financial abuse has been filed.

Yes No

Section 6. Home State. The court needs to know the respondent’s “home state” in order to decide whether Alaska courts have the authority to appoint a guardian in this case.

Home state:

Section 12. Respondent’s Mental or Physical State.

Section 13. Respondent’s Limitations.

Section 16. Recommended Guardian.

Name:

Relationship to respondent:

Priority under AS 13.26.311:

Higher priority persons and addresses:

Priority Order

(1) any person or organization nominated by the respondent if the court believes the respondent is able to make an informed choice

(2) respondent’s spouse

(3) respondent’s adult child

(4) respondent’s parent

(5) a relative of the respondent with whom the respondent has resided for more than six months during the year before the petition was filed

(6) a relative or friend of the respondent who has demonstrated a sincere, longstanding interest in the respondent’s welfare

(7) a private professional guardian

(8) the public guardian

Signature

Address

Verification

Complete this section in front of a notary public.

Superior Court Filing Locations for Guardianships

ANCHORAGE: Probate Office, 825 W. 4th Avenue, Anchorage, AK 99501-2004

BETHEL: Box 130, Bethel, AK 99559-0130

CORDOVA: Box 898, Cordova, AK 99574-0898

DILLINGHAM: Box 909, Dillingham, AK 99576-0909

FAIRBANKS: Probate Dept., 101 Lacey Street, Fairbanks, AK 99701-4765

GLENNALLEN: Box 86, Glennallen, AK 99588-0086

HOMER: 3670 Lake St., Building A, Homer, AK 99603-7686

JUNEAU: Box 114100, Juneau, AK 99811-4100

KENAI: 125 Trading Bay Drive, Suite 100, Kenai, AK 99611-7717

KETCHIKAN: 415 Main St., Rm 400, Ketchikan, AK 99901-6399

KODIAK: 204 Mission Road, Rm 10, Kodiak, AK 99615-7312

KOTZEBUE: Box 317, Kotzebue, AK 99752-0317

NAKNEK: Box 229, Naknek, AK 99633-0229

NOME: Box 1110, Nome, AK 99762-1110

PALMER: 435 S. Denali, Palmer, AK 99645-6437

PETERSBURG: Box 1009, Petersburg, AK 99833-1009

SEWARD: Box 1929, Seward, AK 99664-1929

SITKA: 304 Lake St., Rm 203, Sitka, AK 99835-7759

UNALASKA: Box 245, Unalaska, AK 99685-0245

UTQIAĠVIK (Formerly BARROW): Box 270, Utqiaġvik, AK 99723-0270

VALDEZ: Box 127, Valdez, AK 99686-0127

WRANGELL: Box 869, Wrangell, AK 99929-0869

Costs In Guardianship Proceedings

Filing Fee: The petitioner must pay the filing fee according to Administrative Rule 9(b)(2)(H), unless the court waives the fee because the petitioner is indigent.

Attorney for Petitioner: The petitioner must pay if the petitioner hires an attorney.

Attorney for Respondent: The respondent must pay if he or she is financially able to pay for the attorney. If the respondent is not financially able to pay for an attorney, the court will appoint the Office of Public Advocacy (OPA) to represent the respondent, and the state will pay for it.

Court Visitor: The state will pay for the costs of the Court Visitor, unless the petition is malicious, frivolous or without just cause.

Expert: The state will pay for the costs of the Expert appointed by the court under AS 13.26.226(c), unless the petition is malicious, frivolous or without just cause.

Second Expert Requested by Respondent: Unless financially unable to do so, the respondent must pay if the respondent asks the court to appoint another expert to examine the respondent and testify for the respondent at the hearing. If the respondent is financially unable to pay, the state will pay.

Guardian Ad Litem: If the court appoints a Guardian Ad Litem, the respondent must pay. If the respondent cannot afford to pay the state will pay.