Alaska Court System Self-Help

In a guardianship case, the court will schedule a hearing on whether the person is incapacitated within 120 days from when the petition was filed, unless the court finds a good reason to delay the hearing.

The respondent is entitled to have an attorney at the hearing, but if cannot afford one, the court will appoint the Office of Public Advocacy to represent the respondent.

Before the hearing, the court will appoint a “visitor” that the state pays for who will arrange for evaluations to be performed on the incapacitated person. The court will also appoint an expert in the area of the respondent’s incapacity to examine the respondent and write a report.

The attorney represents the respondent’s wishes.

The guardian ad litem (or GAL) is a person appointed by the court to represent the respondent’s best interests and rights in the proceedings. The court appoints A GAL, generally an attorney, if the court decides that the respondent cannot determine his own interests because of impaired ability. A GAL's duties end when guardianship proceedings are over.

The court expert (or medical expert) has expertise regarding the incapacity of the respondent and has evaluated or treated the respondent. For example, the expert in a guardianship case could be the respondent's psychiatrist. The court appoints an expert who will submit a report and be available to testify at the hearing.

The court visitor is a neutral person trained or experienced in law, medical care, mental health care, pastoral care, education, rehabilitation or social work. The court appoints a visitor to make a thorough independent investigation and evaluation of all information relevant to the respondent's case. The court visitor recommends to the court what type of protective appointment, if any, is in the respondent's best interests.

The visitor will interview the respondent and any person seeking to be the guardian. The visitor must provide a copy of the petition to the respondent and explain what it means. The visitor will tell the respondent about his or her rights including the right to talk to an attorney and an expert in the field of the respondent’s alleged incapacity before answering any of the respondent’s questions. The visitor will provide the respondent with:

• Notice of Respondent's Rights Before Visitor's Interview, PG-290

The visitor shall arrange for the expert to examine the respondent. Interviews and examinations of the respondent shall take place in the respondent’s residence unless the respondent agrees or the visitor finds it necessary to going to a medical or mental health facility.

The visitor will file with the court a report on what the evaluations showed and attach the expert’s report within 90 days after the petition is filed, but no later than 10 days before the guardianship hearing. The person who filed the petition and the respondent have 10 days to file a written response to the visitor’s report if he or she wants to respond.

In addition, if the court appoints a guardian, the court will appoint a visitor every 3 years to file a report about the guardianship. The state pays the visitor to prepare a report after interviewing the ward, the guardian and others.

The visitor shall file with the court an evaluation report within 90 days after the petition was filed. The report shall explain alternatives to guardianship and recommend any that will safeguard the respondent’s essential requirements for physical health and safety. The report may recommend personal guardianship only if the visitor determines that alternatives cannot meet the respondent’s needs. The report includes:

• results of medical tests and examinations that describe the respondent’s mental, emotional, physical and educational condition, behavior and social skills
• recommendations on the type of assistance needed to meet the respondent’s essential requirements for physical health and safety
• evaluation of respondent’s need for mental health treatment and whether available treatment will significantly improve the mental condition
• evaluation of respondent’s need for educational or vocational assistance or personal care and whether they are available
• an evaluation of whether the incapacity may significantly lessen what services or treatment will help the respondent’s condition or skills to improve
• list of names and addresses of all individuals who examined, interviewed or investigated the respondent and everyone contacted to prepare the report, and a summary of the information that each provided that supports the conclusions of the visitor’s report
• a description of alternatives to guardianship that were considered and not recommended and why they won’t be able to meet the respondent’s needs
• a description of the present home and living arrangement and a recommendation for a living arrangement that is in the least restrictive setting necessary to protect the respondent
• a description of the respondent’s financial resources, including eligibility for public benefits

If the evaluation report recommends guardianship, it must also include:

• potential guardians
• specific available services to protect the respondent and if possible return the respondent to full capacity to handle his or her own affairs
• the specific, least restrictive authority needed by the guardian to provide the recommended services.

The petitioner and the respondent may file responses to the evaluation report within 10 days of receiving it.

The respondent has several rights at the hearing, including:

• the right to present evidence
• to cross-examine witnesses
• to remain silent
• to have the hearing open or closed to the public
• be present in the courtroom unless the court determines the respondent’s conduct is so disruptive that the hearing cannot continue with the respondent present
• having a jury determine the issue of incapacity.

If the court finds the respondent is incapacitated, it will decide the extent of the incapacity and what alternatives to full guardianship exist.

If the court finds alternatives can meet the respondent’s needs, the court may dismiss the action and order alternative form of protection.

If the court finds the respondent can do some but not all of the functions needed to care for himself or herself, and there aren’t feasible alternatives to guardianship, the court may appoint a partial guardian, but not a full guardian.

If the court finds the respondent is totally incapacitated and that there are not feasible alternatives to guardianship, including a partial guardianship, the court may appoint a full guardian. The court shall consider the ward’s preference in who it appoints as guardian. The court will provide the ward with a written statement that explains the ward’s rights and what procedures to use to petition the court.

If the court determines that the respondent is an incapacitated person and that a guardianship is necessary, the court issues a Guardianship Order.

The Guardianship Order:

• Names the guardian
• Includes specific findings that supports each grant of authority to the guardian
• Adopts a guardianship plan that states the guardian’s authority regarding:
  • medical care and mental health treatment
  • housing based on the ward’s wishes, preference for maintaining community ties and in the least restrictive setting
  • personal care, education and vocational services necessary for the ward’s physical and mental welfare and to return the ward to full capacity
  • applying for health and accident insurance and public benefits
  • physical and mental examinations needed to determine the ward’s health treatment needs
  • control of the ward’s estate and income to pay for services that the guardian arranges for the ward’s benefit
• The guardianship plan cannot restrict the ward’s liberty more than is reasonably necessary to protect the ward from serious physical injury, illness or disease and to provide the ward with medical care and mental health treatment.
• The guardianship plan shall be designed to encourage a ward to participate in all decisions and act on the ward’s own behalf as much as possible.
• The Guardianship Order will determine the duration of the guardianship.

The person named as the guardian must file an acceptance of the appointment and acknowledgement of duties and reporting requirements. A relative or friend of the ward who is appointed as the guardian must complete one hour of mandatory education on the basics of guardianship before the appointment or within 30 days after the appointment. Depending on the situation, to accept the appointment, file:

• Acceptance of Appointment as Guardian, PG-430
• Acceptance of Appointment as Temporary Guardian, PG-433

The court will issue a document called “Letters of Guardianship” which states what are the guardian’s powers and whether there are any specific limitations.

The guardian will present the Letters when needed to show what their powers are, such as when dealing with financial issues or medical providers.

The person appointed as the guardian must complete one hour of mandatory education on the basics of guardianship before the appointment or within 30 days after the appointment.

The court may require the guardian to post a bond, especially when there are substantial assets that need to be protected.

Alaska law requires all guardians of adults to obtain at least 1-hour of education on the responsibilities of being a guardian. You may satisfy this requirement by a combination of video and reading materials, which are available at your local court.

Reading Materials

• Powers and Duties of a Full Guardian of an Adult, PG-510
• Family Guardian Education Materials binder, compiled by the Alaska State Association of Guardianship and Advocacy (ASAGA)

Video

• Becoming a Guardian or Conservator in Alaska produced by the Alaska State Association of Guardianship and Advocacy (ASAGA). This video is hosted by the KTOO website as a public service.

If you can't view online:

• Anchorage: If you cannot watch the video online at: https://www.ktoo.org/guardianship/ , the Probate/Children’s division, located in the basement of the Nesbett Court House, 825 W 4th Ave., will loan you a DVD to watch at home that you must return after viewing it.
• Fairbanks: Every Monday and Wednesday at 3:00 p.m. in the Jury Assembly room, 2nd floor of the Rabinowitz Courthouse, 101 Lacey Street. Check in with the jury clerk and request the video and binder. Call the probate department at (907) 452-9256 if you have questions.

If you live in Anchorage, you may also satisfy the requirement by attending a class sponsored by the Family Guardian Program. The class is offered the first Tuesday of each month at 4:00 p.m. at the Office of Public Advocacy, 900 W. 5th Ave., Ste. 525. Classes last approximately 1 hour and include an informational video and an opportunity to ask individual questions about the guardianship process. Please call 269-3500 if you plan to attend.

Once you do the required education, fill out and file:

• Affirmation - Education Requirement Satisfied, PG-120

Make 2 copies of the completed form. Provide a copy by mail or hand delivery to the ward in the case. Keep a copy for yourself. File the original with the court.

The courts in Anchorage, Bethel, Dillingham, Fairbanks, Homer, Juneau, Kenai, Kodiak, Palmer, Sitka and Valdez offer free mediation services in adult guardianship and conservatorship cases. The mediator helps those involved make decisions and create plans that will best meet the needs of the vulnerable adult.

Learn more about the Guardianship and Conservatorship Mediation Program, PUB-37.

Read the Confidentiality and Mediation Agreement - Adult Guardianship and Conservatorship which describes mediation, the role of the mediator, and how mediation is confidential in these cases.

If you are interested in mediation and it is available in the court where you filed your case, you may file:

• Request for Court Sponsored Guardianship Mediation, MED-100