GAP Act: Guardianship of an Adult, Part I

Republished with permission of Chancellor Lawrence Primeaux. 

Continuing with an overview of the GAP Act.

Section numbers correspond to SB 2828.

Basis for appointment (301):

Court may appoint a guardian “when the respondent lacks the ability to meet essential requirements for physical health, safety, or self-care” because: (1) unable to receive and evaluate information or make or communicate decisions, even with support or technological assistance; or (2) is found to be a person with mental illness or intellectual disability who is incapable of taking care of his or her person.

The court may grant the guardian only those powers necessitated by the limitations and needs of the ward, and must enter “orders that will encourage the development of the ward’s maximum self-determination and independence.

The court must consider any less restrictive alternatives that would meet the needs of the ward.

Petition (302):

May be filed by “chancellor or clerk of the chancery court, any relative or friend, or any other interested party, including the adult for whom the order is sought.

Sworn petition: (1) alleging that the adult is in need of a guardianship; (2) stating the name and address of the attorney representing the petitioner, if any; (3) under the style of the case before the body, the following language must appear in bold or highlighted type:

The relief sought herein may affect your legal rights. You have a right to notice of any hearing on this petition, to attend any such hearing, and to be represented by an attorney.

Notice of hearing (303):

Seven days’ notice to the adult respondent; however, for good cause the court may order shorter notice.

Notice must be given, but “Failure to give notice does not preclude the court from appointing a guardian.”

Unless the court finds that the adult is competent and joins in the petition, notice must be given to: (1) the adult for whom G is sought; (2) any appointed conservator; (3) at least one relative from among those specified in the statute; (4) anyone else directed by the court.

VA must be noticed if the adult is a recipient of benefits.
After appointment, notice of hearing, with a copy of the motion or petition, must be served on the respondent, guardian, and anyone else directed by the court.

GAL (304):

Court may appoint a GAL payable out of the estate of the respondent only if necessary to protect the interest of the adult.

Failure to appoint a GAL does not void the judgment and is not error.

Hearing and Professional evaluation (305):

The court must conduct a hearing to determine whether a G should be appointed, and the judge may appoint a GAL “to present the interests of the respondent”.

The judge determines the number and character of witnesses, but witnesses must include: (1) two licensed physicians, or (2) one licensed physician and either one licensed psychologist, nurse practitioner, or physician’s assistant.

The medical professionals must have personally examined the respondent and completed certificates of the results of examination filed with the chancery clerk and made part of the record. The certificates may be considered by the court, and the professionals may be called as witnesses.

The personal examination may be in person or via telemedicine conforming to MCA 83-9-351.

Nurse practitioner or physician’s assistant must comply with law regarding physician supervision.

Rights at hearing (306):

The respondent may: (1) present evidence and subpoena witnesses and documents; (2) examine witnesses; and (3) otherwise participate. The proposed guardian must attend unless excused by the court for good cause.

Hearing must be closed for good cause shown on request of the respondent.

The court may allow any person to participate on determining that the best interest of the respondent will be served.

Confidentiality (307):

Record is confidential, but may be accessed by: (1) an adult subject to the proceeding; (2) an attorney designated by the adult; (3) any person subject to notice under Section 309(4).

Any other person may petition the court for access based on good cause. The court may grant access if: (1) in the best interest of the respondent or ward; or (2) furthers public interest; and (3) does not endanger the welfare or financial interest of the respondent or ward.

Report of GAL or professional evaluations may be sealed “when determined necessary by the court.” Even if sealed, the documents will be available to: (1) the court; (2) the respondent or ward; (3) the petitioner, GAL, attorneys for petitioner and respondent for purposes of the proceeding; (4) an agent under POA for health care, unless the court orders otherwise.

Who may be appointed guardian (308):

The court appoints the person in its discretion who is in the best interest of the respondent.

If two or more are considered the court appoints the “best qualified.”

To determine best qualified, the court considers the:(1) person’s relationship with the respondent; (2) person’s skills; (3) the expressed wishes of the respondent, including designation made in a will; (4) durable POA or health-care directive; (5) the extent to which the person and the respondent have similar values and preferences; and (6) the likelihood of the person’s success as a guardian.

The court may decline to appoint the person requesting.

If a qualified guardian cannot be determined, the court may appoint the chancery clerk, unless there is a conflict or other ground for recusal.

Court may not appoint: (1) a person who provides paid services to the respondent; (2) a person employed by a person who provides paid services to respondent; (3) the spouse, parent, or child of a person who provides or is employed to provide paid services to the respondent, unless

(a) the individual is related to the respondent by blood, marriage, or adoption; or (b) the court finds by clear and convincing evidence that the person is best qualified and available, and appointment of such a person is in the respondent’s best interest.

Court also may not appoint an owner, operator, or employee of a long-term-care institution at which the respondent is receiving care unless related to the respondent by blood, marriage, or adoption.

Order (309):

The court order appointing a guardian must include specific findings by clear and convincing evidence that: (1) the needs of the respondent can not be met by a less restrictive alternative, including use of supportive services and technology; and (2) the respondent was given proper notice of hearing.

An order granting full guardianship must state the basis for granting it and findings supporting a conclusion that a limited guardianship would not meet the “functional needs of the ward.”

An order granting limited guardianship must state the specific powers granted to the guardian.

The court’s order must also include contact information for each person entitled to subsequent notices of: (1) rights of the adult under Section 310; (2) change of the ward’s primary dwelling; (3) delegation of powers by the G; (4) the G’s plan; (5) access to court records; (6) death or significant change in condition of the ward; (7) limitation or modification of the G’s powers; and (8) removal of the guardian.

A spouse and adult children of the ward are entitled to notice unless the court directs otherwise for the best interest of the ward.

“If the chancellor finds from the evidence that the person is incapable of taking care of his person, the chancellor shall appoint a guardian over his person.”

“Costs and expenses” of the proceeding are paid by the estate of the ward if a G is appointed. If no estate, or if no guardian is appointed, “costs and expenses” are paid by the petitioner.

Notice of Order (310):

Within 14 days of the order, guardian must serve a copy of the order of appointment on the ward and all other persons given notice under Section 309. The service must include a notice of right to request termination or modification.

Within 14 days of the order the guardian must request the court to give a statement of the rights of the ward and must serve it on all Section 309 persons. The statement must notify the ward of the right to: (1) seek termination, modification, or removal, and to choose an attorney; (2) be involved in decisions about care, dwelling, activities, or social interactions; (3) be involved in health-care decisions; (4) be notified at least 14 days in advance of a change in dwelling, or move to a nursing home or other restrictive facility unless the move is in the guardian’s plan or in a court order; (5) object to a move and the procedure for objecting; (6) communicate visit, and interact with others, unless the court has ordered otherwise; (7) receive a copy of the G’s plan; and (8) object to the guardian’s plan or report.

The guardian may restrict contact by the ward with others if authorized by the court, or if a protective order is in place. If the guardian has good cause to believe that interaction with a specific person would pose a risk of physical, psychological, or financial harm to the ward, the guardian may restrict contact: (1) for not more than 7 business days if the person has a pre-existing family or social relationship with the ward; or (2) for not more than 60 days for others.

Emergency guardianship of adult (311):

Same as that of a minor.

This article was republished with the permission of Chancellor Lawrence Primeaux of Meridian and was originally published on The Better Chancery Practice Blog on November 6, 2019.