Toolkit · Wills and Estates

The Guardianship Petition and Conservator Duties Toolkit

42 U.S.C. § 405

Type
Toolkit
Jurisdiction
National
Date
2024-02-25
Topic
Wills and Estates

This toolkit collects the documents a guardianship matter actually requires. It includes an alternatives analysis form to complete before filing, a petition outline built around functional limitations rather than diagnosis, a functional capacity questionnaire for evaluators, a notice checklist, and a proposed limited order that reserves every power not expressly granted. Administration tools cover an inventory template, an annual report and accounting format, a court approval petition outline, a visitation policy, a visit log, and a records index. Change tools include a restoration petition outline, a successor nomination, and an interstate transfer sequence. A guardian orientation sheet and an authority quick card close the set. Templates are drafting starting points and require adaptation to the governing state's statute and local forms.

The Guardianship Petition and Conservator Duties Toolkit

Wills and Estates > Guardianship and Conservatorship | Published 25 February 2024 - Updated 17 February 2026 | UpLaw - uplaw.us

What Is In This Toolkit

Fifteen working documents. Use them with the checklist for sequence and the comprehensive guide for the underlying law. The narrative introduction is how guardianship actually works.

⚠ Tool 1 should be completed before anything else is drafted. Most petitions are filed to solve a problem that a power of attorney, a representative payee appointment, or a services referral would solve at a fraction of the cost and without removing anyone's rights.

Tool 1 — Alternatives Analysis Form

Person: ____ Date: ____ Completed by: ____

1. What specifically cannot this person do? (List each decision or task, with an example and a consequence.)

2. Existing documents located ☐ durable power of attorney ☐ health care directive ☐ privacy authorization ☐ revocable trust ☐ nomination of guardian ☐ none found — searched: estate file, safe deposit box, drafting attorney, home records.

3. Alternatives considered. ☐ Power of attorney — sufficient? why not: ____ ☐ Health care agent — sufficient? why not: ____ ☐ Representative payee under 42 U.S.C. § 405 or 42 U.S.C. § 1383 — sufficient? why not: ____ ☐ Supported decision-making agreement — sufficient? why not: ____ ☐ Trust with successor trustee — sufficient? why not: ____ ☐ Services under 42 U.S.C. § 1396n / state plan at 42 U.S.C. § 1396a — sufficient? why not: ____ ☐ Banking arrangements — sufficient? why not: ____ ☐ Caregiver authorization (minors) — sufficient? why not: ____

4. What exactly does the facility, bank, or provider require? (Obtain in writing.) ____

5. Conclusion. ☐ No proceeding needed — action taken: ____ ☐ Limited order needed, powers: ____ ☐ Full order needed, because: ____

Tool 2 — Petition Outline

1. Petitioner — identity, relationship, interest in the outcome, and any conflict. 2. The person — name, age, address, and current location. 3. Functional limitations — what the person cannot do, in which domains, with examples and consequences. Do not lead with a diagnosis. 4. Alternatives — attach Tool 1 and summarize why each is insufficient. 5. Powers requested — enumerated, with a statement that all others are reserved to the person. 6. Duration and review — proposed review date. 7. Proposed guardian — qualifications, relationship, criminal and financial history disclosures, bond capacity, and any conflict. 8. The estate — assets, income sources, benefits received, and approximate values. 9. Interested persons — complete list with addresses and relationships. 10. The person's known preferences — regarding the proceeding and regarding who should serve. 11. Evaluation — attached or to be filed, functional in nature. 12. Relief — the specific order sought, with a proposed order attached.

Tool 3 — Functional Capacity Questionnaire

Give this to the evaluator. A diagnostic letter will not carry a contested case.

For each item, state: can do independently / can do with support (describe) / cannot do, and the basis for the conclusion.

Health. Understands a treatment recommendation and its alternatives; appreciates consequences of refusing; manages medications; recognizes symptoms requiring help; attends appointments. Safety. Recognizes hazards at home; responds to an emergency; can summon help; navigates the community; drives safely. Finances. Understands income and expenses; pays bills; uses banking; recognizes a scam or undue influence; makes purchases proportionate to means. Daily living. Meals; hygiene; housekeeping; transportation; shopping. Communication. Expresses a choice; understands information presented simply; retains information long enough to decide. Residence. Understands the options; can articulate a preference and reasons.

Additional questions. ☐ Is any current condition acute or reversible — delirium, infection, medication effect, dehydration, pain, recent hospitalization? What change is expected, and by when? ☐ Would supports restore ability in any domain? Which supports? ☐ Does capacity fluctuate by time of day or setting? ☐ What can the person do that they should retain authority over? ☐ What is the person's own stated preference?

Evaluator, credentials, date, and basis of examination.

Tool 4 — Notice Checklist

☐ The person — personal service, in plain language, explaining the rights to counsel, to attend, to present evidence, to cross-examine, and to an independent evaluation. ☐ Spouse or domestic partner ☐ Adult children ☐ Parents ☐ Adult siblings ☐ Any agent under a power of attorney or health care directive ☐ Any trustee of a trust holding the person's assets ☐ Any current guardian or conservator, including in another state ☐ The facility where the person resides ☐ Any person nominated by the person to serve ☐ Any person who has cared for the person for a stated period, where the statute requires ☐ Public guardian or agency, where required ☐ Proof of service filed before the hearing ☐ Diligent search documented for anyone who cannot be located

Tool 5 — Proposed Limited Order

Courts grant what is requested. Request less.

ORDER APPOINTING LIMITED GUARDIAN

The court finds by clear and convincing evidence that [person] is unable to [specific functional findings], and that no less restrictive alternative is sufficient because [findings].

1. Appointment. [Name] is appointed limited guardian of the person / estate.

2. Powers granted. The guardian may, and only may: (a) consent to or refuse routine medical treatment; (b) arrange and coordinate services and supports; (c) determine residence within [defined limits]; (d) receive and apply income for the person's support; (e) [other, enumerated].

3. Powers reserved to the person. The person retains every power not expressly granted, including: the right to vote; the right to marry; the right to decide whom to see and communicate with; the right to choose social activities; the right to make routine daily decisions; the right to possess personal property; the right to consent to or refuse [named categories]; and the right to petition this court directly.

4. Court approval required for: placement in a locked or more restrictive setting; withholding or withdrawing life-sustaining treatment; sterilization or other irreversible procedure; out-of-state relocation; sale or encumbrance of real property; gifts and estate planning; settlement of claims; borrowing; guardian compensation; and any restriction on visitation or communication.

5. Bond. $____ .

6. Reporting. Inventory due ____; annual report due ____; annual accounting due ____.

7. Review. This order is set for review on ____, at which the court will consider whether the guardianship remains necessary and whether powers should be narrowed.

8. Notice. The guardian shall notify interested persons of any change of residence and any proposed restriction on visitation.

Tool 6 — Inventory Template

Asset Description / identifier Titling Value Basis of value Encumbrance Income produced
Real property appraisal / assessment mortgage rent
Bank accounts statement interest
Investment accounts statement dividends
Retirement accounts statement distributions
Vehicles guide value loan
Life insurance cash value loan
Personal property estimate
Business interests valuation
Claims and litigation
Benefits received Social Security / SSI / pension monthly award letter

Also identify: jointly held property; assets with beneficiary designations; assets held in trust; and any transfer within the statutory lookback that may affect eligibility under 42 U.S.C. § 1396p.

Tool 7 — Annual Report on the Person

1. Current residence and any change during the period, with the date and reason. 2. Physical and mental condition, with the date of the most recent examination and the provider. 3. Services received — medical, therapeutic, personal care, day programs, transportation — and any unmet need. 4. Guardian contact — number of visits, dates, and duration. 5. Visitation — who visits, any restriction imposed, and the basis for it. 6. The person's stated preferences during the period, recorded as stated. 7. Major decisions made and any court approval obtained. 8. Changes in capacity, improvement or decline, with supporting observation. 9. Recommendation: ☐ continue as ordered ☐ narrow powers, specifically ____ ☐ terminate, because ____ 10. Signature, date, and contact information.

Tool 8 — Annual Accounting Format

Schedule A — Receipts. Date, source, description, amount. Include benefits, pensions, interest, dividends, rents, refunds, and any sale proceeds. Schedule B — Disbursements. Date, payee, purpose, amount, and the receipt reference. Group by category: housing, care, medical, insurance, food, transportation, taxes, professional fees, and other. Schedule C — Assets on hand at period end, reconciled to statements. Schedule D — Changes in assets — sales, purchases, transfers — with the court approval reference for each. Schedule E — Guardian compensation paid, with the approval order reference.

Certification. The guardian certifies that the account is complete and accurate, that no funds were commingled, and that no disbursement was made for the guardian's benefit except as approved.

Attachments. Bank statements for the full period, receipts, and approval orders.

Tool 9 — Court Approval Petition Outline

1. Authority — the paragraph of the appointing order and the statute requiring approval. 2. The proposed action, precisely stated, with amounts, parties, and dates. 3. Why it serves the person, and, where preferences are known, why it is what the person would have chosen. 4. Current circumstances — condition, residence, needs. 5. Financial effect, including any effect on benefits under 42 U.S.C. § 1382 and 42 U.S.C. § 1396p. 6. Alternatives considered and rejected. 7. Independent support — appraisal, estimates, physician letter, or fee schedule. 8. Notice to interested persons and their positions. 9. The person's own view, obtained and reported. 10. Proposed order granting exactly what is requested.

Tool 10 — Visitation Policy and Visit Log

The right to communicate and associate is retained by the person in most states and may be restricted only on specific findings. A written policy protects the person and the guardian.

VISITATION POLICY

  1. [Person] may see, speak with, and correspond with anyone they choose.
  2. Visits do not require the guardian's permission or presence.
  3. If a visit must be limited for a documented reason — a medical restriction, a documented history of harm, or the person's own stated wish — the guardian will state the reason in writing, notify interested persons, and seek court approval where required.
  4. Any restriction is reviewed every [30] days and lifted when the reason no longer applies.
  5. Any person denied contact may raise it with the court directly, and independent assistance is available from protection and advocacy organizations established under 42 U.S.C. § 15001 and 42 U.S.C. § 10801.

VISIT LOG

Date Duration Location Who visited Person's condition and mood Preferences expressed Issues noted Follow-up

Tool 11 — Restoration Petition Outline

1. Who is petitioning — the person, the guardian, or an interested party. 2. The existing order — date, powers granted, and any prior modification. 3. What has changed. Improvement in condition; establishment of supports; completion of treatment or rehabilitation; or the original order having been broader than necessary. 4. Evidence. A current functional evaluation; testimony from people who observe the person daily; records of the person managing tasks in the domains at issue; and any supported decision-making arrangement. 5. The relief sought — full restoration, or restoration of enumerated powers with the remainder continuing. 6. Support plan, if partial restoration is sought — who assists with what. 7. Burden. In most states the party opposing restoration bears it. 8. Request for appointment of counsel for the person.

Several states permit the person to initiate restoration informally, including by letter to the court. Counsel and guardians should tell the person that this right exists.

Tool 12 — Representative Payee Application Notes

A court order does not make the guardian the payee; that is a separate administrative appointment.

☐ Apply separately for payee status under 42 U.S.C. § 405 for Social Security and 42 U.S.C. § 1383 for supplemental security income; program rules are at 20 C.F.R. Part 404 and 20 C.F.R. Part 416. ☐ Maintain benefit funds in a dedicated account titled as the program requires, separate from other guardianship funds. ☐ Spend benefits first on current maintenance — food, shelter, clothing, medical care — then on other needs. ☐ Keep conserved funds within the resource limit; confirm eligibility rules at 42 U.S.C. § 1381, 42 U.S.C. § 1382, and the disability definition at 42 U.S.C. § 1382c. ☐ File the payee accounting when requested; it is separate from the court accounting. ☐ Report changes in residence, income, resources, and marital status promptly. ☐ Coordinate with Medicaid eligibility and transfer rules at 42 U.S.C. § 1396p, and with services available under 42 U.S.C. § 1396n and the state plan at 42 U.S.C. § 1396a.

Tool 13 — Guardian Orientation Sheet

Give this to every newly appointed guardian.

You are a fiduciary. The money is not yours, the decisions are not about you, and everything you do will be reviewed.

☐ Open a separate account in the person's name or the guardianship's. Never a joint or personal account. ☐ Keep a receipt for every dollar. No exceptions, including small cash purchases. ☐ Do not pay yourself without a court order, even a reasonable amount. ☐ Do not pay family members for care without a court order. ☐ Do not make gifts, including at holidays, without authority. ☐ Petition before any major decision — see Tool 9 for the list. ☐ Visit, and write it down. Courts notice guardians who do not visit. ☐ Ask the person what they want and give effect to it where you can. That is the legal standard, not merely good manners. ☐ Do not restrict who the person sees without documented reason and, where required, court approval. ☐ File on time: inventory, annual report, annual accounting, bond renewal. ☐ Ask every year whether this is still needed and whether powers can be narrowed. Say so in your report. ☐ Get help. A lawyer's hour before a decision costs less than a surcharge proceeding after it.

Tool 14 — Records Index

☐ Petition, evaluations, visitor's report, hearing transcript. ☐ Order appointing; certified letters; every amended order. ☐ Bond and renewals. ☐ Inventory and appraisals. ☐ Annual reports and accountings as filed, with approval orders. ☐ Every court approval, filed with the transaction it authorized. ☐ Bank statements and receipts by year. ☐ Benefit award letters, payee appointment, redeterminations. ☐ Insurance policies and premium proof. ☐ Medical records obtained and consents given. ☐ Visit log. ☐ The person's stated preferences, recorded and dated; any prior directive or power of attorney. ☐ Correspondence with interested persons. ☐ Interstate transfer or registration documents.

Tool 15 — Authority Quick Card

Subject Citation
Standard of proof analogy Addington v. Texas, 441 U.S. 418
Limits on confining a non-dangerous person O'Connor v. Donaldson, 422 U.S. 563
Treatment decisions for an incapacitated person Cruzan, 497 U.S. 261
Social Security payee 42 U.S.C. § 405; 20 C.F.R. Part 404
SSI payee and program 42 U.S.C. § 1383; 20 C.F.R. Part 416
SSI eligibility and disability 42 U.S.C. § 1381; § 1382; § 1382c
Medicaid transfers and trusts 42 U.S.C. § 1396p
Waiver services and state plan 42 U.S.C. § 1396n; § 1396a
Integration mandate 42 U.S.C. § 12132; § 12131; 29 U.S.C. § 794
Protection and advocacy 42 U.S.C. § 15001; § 10801
Litigation representative Fed. R. Civ. P. 17

Tool 16 — Interstate Transfer Sequence

Use transfer, not a second petition. Filing fresh in the new state produces conflicting orders.

☐ Confirm the home state and which court has jurisdiction to authorize transfer. ☐ Petition the originating court for authorization to transfer, giving notice to all interested persons and stating the proposed receiving court. ☐ Petition the receiving court to accept, attaching the originating court's provisional order and the current inventory and accounting. ☐ Obtain the receiving court's provisional acceptance, then the originating court's final transfer order, then the receiving court's final acceptance. ☐ Confirm the original guardianship terminates on acceptance, and file the final accounting there. ☐ Obtain a new bond if the receiving state requires one, and confirm the reporting calendar under its rules. ☐ Re-establish benefits in the new state; services under 42 U.S.C. § 1396n and the state plan at 42 U.S.C. § 1396a do not transfer automatically, and eligibility must be re-determined. ☐ Register the order in any additional state where a bank, facility, or title transfer requires recognition. ☐ Update addresses of record so notices reach the parties.

Tool 17 — Where This Connects

⭐ If you use only three tools here, use the alternatives analysis, the functional capacity questionnaire, and the proposed limited order. The first prevents unnecessary proceedings, the second wins or defeats the necessary ones, and the third keeps the order no larger than the evidence supports.

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