Legal Disclaimer: The following is basic legal information, provided as a public service by Wyoming’s lawyers. The information provided is not a substitute for speaking to an attorney. Only an attorney can give you legal advice regarding your specific situation. Click here for help finding a lawyer.
NOTE: The information in these frequently asked questions is about probate guardianship for an adult.
Guardianship can be granted for an adult or a minor child. The following information only discusses guardianship of an adult. Click here if you would like more information about guardianship of a minor.
Guardianship is a court proceeding in which a person may be granted authority over an incapacitated person (the ward) to help care for the ward’s well-being and make decisions regarding the ward. Depending on the circumstances and the needs of the ward, the guardianship may give full (plenary) or limited authority over the ward and may be temporary or permanent. The guardianship should be designed to give the ward as much independence as possible, depending on the needs of the ward.
A guardian is appointed to take care of the physical well-being of a ward. The guardian provides for the care and custody of the ward. A conservator is appointed to take care of the property and finances of the ward. The guardian and conservator may be the same person or may be different people.
The needs of each person are different, and it depends on the circumstances in each case. Generally, a guardian may be needed when an adult is or becomes incapacitated (incompetent) and is no longer able to take care of himself/herself without assistance. The legal definition in Wyoming of “an incompetent adult” is an individual who is unable unassisted to properly manage and take care of himself/herself or his/her property as a result of the medical conditions of advanced age, physical disability, disease, the use of alcohol or controlled substances, mental illness, mental deficiency or intellectual disability.
Any qualified person may be appointed as a guardian as long as it is in the ward’s best interest. But, the court may not appoint some persons who have business or professional relationships that might create a conflict. These persons would be disqualified. For more information, see W.S. 3-2-107.
Although any qualified person may be appointed as guardian, the following persons have priority for appointment in the following order:
1. A person nominated by the ward if at the time of the nomination the ward has the capacity to make a reasonably intelligent choice;
2. The spouse of the ward;
3. A person nominated in the will of the ward’s deceased spouse;
4. The parent of the ward;
5. An adult child of the ward;
6. A person named in the will of the ward’s deceased parent;
7. A relative or friend who has a longstanding interest in the welfare of the ward;
8. Any other person whose appointment would be in the best interests of the ward;
9. A person with a guardianship program for incompetent persons.
Once a guardian is appointed by the court, the guardian has the authority over the care and protection of the ward, but this authority may be limited by the court. In making decisions regarding the care and protection of the ward, the guardian has a duty and responsibility to promote the well-being of the ward and act in the ward’s best interest. For more information about the powers and duties of the guardian, see W.S. 3-2-107.
A guardianship can only be created by going through the court process and having the court order a guardianship. Click here for more information about the adult guardianship process.
The person who files for guardianship is called the Petitioner. The petitioner is usually the person who wants to be appointed as the guardian. A voluntary petition for guardianship may also be filed a person who wants to create a guardianship over himself/herself, but if a person is already incompetent, then another person will have to file a petition for guardianship. This is called an involuntary guardianship.
The incompetent person who is in need of the guardian is called the Proposed Ward. The proposed ward is entitled to receive notice that a petition for guardianship has been filed. The court will also likely appoint a Guardian Ad Litem. This person is not the same as the person requesting to be a guardian. The Guardian Ad Litem is appointed by the court to help determine the wishes of the ward and what is in the ward’s best interests. Depending on the circumstances involved in the case, medical records or reports may also need to be obtained from medical professionals as evidence of why a guardian is needed.
Certain people are entitled to receive notice when a guardianship is filed. The Petitioner must provide notice of the filing of a guardianship by serving the proposed ward, his/her custodian and the proposed guardian. Notice of filing must also be served on the proposed ward’s parents, spouse, adult children and any other person that the court orders to receive notice.
A guardianship may be filed in Wyoming if this is the home state of the proposed ward (meaning the proposed ward has lived in this state for at least six consecutive months immediately before the petition for guardianship is filed). If Wyoming is not the proposed ward’s home state, the petition may still be filed here if there is no guardianship filed in any other state and this is an appropriate forum for this guardianship. Usually the proposed ward will need to be present in the state before a guardianship should be filed in Wyoming.
The guardianship should be filed in the District Court of the county where the proposed ward lives or is present. If the proposed ward has been admitted to an institution by a court order, the guardianship may also be filed in the District Court of the county where that order was entered.
Click here for more District Court information.
After the petition is filed and everyone entitled to notice is served, the court will have a hearing on the petition for guardianship. At the hearing on the petition for guardianship, the judge will decide if a guardianship is needed and if the proposed guardian should be appointed.
The petitioner must appear at the hearing and should be prepare to present evidence as to why the guardianship is necessary and in the proposed ward’s best interest. The petitioner must prove to the court that the proposed ward is incompetent, unless a voluntary petition was filed by the ward. The petitioner must be prepared to show evidence that the proposed ward is unable to care for himself/herself without assistance. The petitioner may need to offer evidence such as medical records, social service records, and testimony of witnesses such as friends, family, or medical professionals, educators, or caregivers of the proposed ward.
The petitioner must also be prepared to show the court that the proposed guardian is a fit and proper person to serve as guardian.
If the court approves the guardianship, the judge will enter an Order Appointing Guardian.
Once the guardian is appointed by a court order and qualifies by taking the oath and paying any required bonds, the guardian will obtain letters of guardianship. The letters of guardianship evidence the appointment, the date the guardian qualified, and the authority of the guardian to act on behalf of the ward.
After the guardianship is granted and the letters of guardianship are issued, is there anything else the guardian must file with the court?
The guardian is required to file reports on the status of the ward every six months for as long as the guardianship is in effect. The purpose of the report is to keep the court and interested persons informed of the well-being and care of the ward. The guardian’s report must describe the physical condition, disabilities, residence, treatment, care, and activities of the ward and a description of the actions the guardian has taken on behalf of the ward.
If the guardian does not file the required reports every six months, the guardianship could be terminated (cancelled) by the court. The guardian also must file a report with the court within 30 days of the guardian being removed or the guardianship being terminated.
Click here for more information about the adult guardianship process.