75-5-303 - Procedure for court appointment of a guardian of an incapacitated person.
75-5-303. Procedure for court appointment of a guardian of an incapacitatedperson.
(1) The incapacitated person or any person interested in the incapacitated person's welfaremay petition for a finding of incapacity and appointment of a guardian.
(2) Upon the filing of a petition, the court shall set a date for hearing on the issues ofincapacity; and unless the allegedly incapacitated person has counsel of the person's own choice,it shall appoint an attorney to represent the person in the proceeding the cost of which shall bepaid by the person alleged to be incapacitated, unless the court determines that the petition iswithout merit, in which case the attorney fees and court costs shall be paid by the person filing thepetition.
(3) The person alleged to be incapacitated may be examined by a physician appointed bythe court who shall submit a report in writing to the court and may be interviewed by a visitor sentby the court. The visitor also may interview the person seeking appointment as guardian, visit thepresent place of abode of the person alleged to be incapacitated and the place it is proposed thatthe person will be detained or reside if the requested appointment is made, and submit a report inwriting to the court.
(4) The person alleged to be incapacitated shall be present at the hearing in person andsee or hear all evidence bearing upon the person's condition. If the person seeking theguardianship requests a waiver of presence of the person alleged to be incapacitated, the courtshall order an investigation by a court visitor, the costs of which shall be paid by the personseeking the guardianship. The investigation by a court visitor is not required if there is clear andconvincing evidence from a physician that the person alleged to be incapacitated suffers from: (a)fourth stage Alzheimer's Disease; (b) extended comatosis; or (c) profound mental retardation. The person alleged to be incapacitated is entitled to be represented by counsel, to presentevidence, to cross-examine witnesses, including the court-appointed physician and the visitor, andto trial by jury. The issue may be determined at a closed hearing without a jury if the personalleged to be incapacitated or the person's counsel so requests.
Amended by Chapter 104, 1988 General Session