As noted in Part 2, the statutes provide a list of persons who have priority to be appointed as a guardian or conservator, but these lists are not set in stone. When there is disagreement as to who should act as guardian and conservator for an elderly parent, it is up to the court to decide.
At the hearing, the elderly person who needs assistance with their affairs is known as the Respondent. In contested cases, the court will almost always appoint an attorney to represent the Respondent. The person who filed the petition to appoint a guardian and/or conservator is known as the Petitioner. In contested cases, another person may file a competing petition to be appointed guardian and/or conservator.
Prior to the hearing, the court will appoint a Visitor who will interview the Respondent, the Petitioner or Petitioners, caregivers, and even other family members. The Visitor will then file a report with the court. In the report, the Visitor will present their impressions as to the Respondent’s cognitive status and whether the appointment of a guardian and/or conservator is appropriate. The Visitor will also present their opinions of the competing Petitioners and whether they would be able to handle the duties of being a guardian or conservator. This report is not binding on the court but it can be fairly persuasive, especially in contested cases.
The Respondent not only has a right to be at the hearing, the statute actually requires the Respondent to attend unless excused by the court for good cause. “Good cause” varies but generally requires a significant health problem that would either prevent the Respondent from attending the hearing or make it dangerous for the Respondent to attend the hearing. The Respondent has a right to express a preference as to who he or she wants to serve as guardian and/or conservator and the Court should take this preference into account.
Depending on the level of conflict, the hearing may involve testimony from experts as to the Respondent’s level of cognitive functioning. The Petitioner or Petitioners can present testimony from other family members and even friends to support their position that they are best suited for the role of guardian and/or conservator. This is not the time to present petty disagreements or air “dirty laundry.” The court’s task is not to determine who is the “favorite” son or daughter or to avoid hurt feelings. The court has the very serious task of deciding who is best suited to manage the Respondent’s finances and medical decisions.