75-5-303. Procedure for court appointment of a guardian of an incapacitated
person.
(1) The incapacitated person or any person interested in the incapacitated person's welfare
may 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 of
incapacity; 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 be
paid by the person alleged to be incapacitated, unless the court determines that the petition is
without merit, in which case the attorney fees and court costs shall be paid by the person filing the
petition.
(3) The person alleged to be incapacitated may be examined by a physician appointed by
the court who shall submit a report in writing to the court and may be interviewed by a visitor sent
by the court. The visitor also may interview the person seeking appointment as guardian, visit the
present place of abode of the person alleged to be incapacitated and the place it is proposed that
the person will be detained or reside if the requested appointment is made, and submit a report in
writing to the court.
(4) The person alleged to be incapacitated shall be present at the hearing in person and
see or hear all evidence bearing upon the person's condition. If the person seeking the
guardianship requests a waiver of presence of the person alleged to be incapacitated, the court
shall order an investigation by a court visitor, the costs of which shall be paid by the person
seeking the guardianship. The investigation by a court visitor is not required if there is clear and
convincing 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 present
evidence, to cross-examine witnesses, including the court-appointed physician and the visitor, and
to trial by jury. The issue may be determined at a closed hearing without a jury if the person
alleged to be incapacitated or the person's counsel so requests.
Amended by Chapter 104, 1988 General Session
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Last revised: Thursday, May 28, 2009