29-4-10. Petition for appointment of guardian; requirements for petition.

Any interested person, including the proposed ward, may file a petition for the appointment of a guardian. Such petition shall be filed in the court of the county in which:#

1. (1)

   The proposed ward is domiciled;#

2. (2)

   The proposed ward is found; provided, however, that if the court of the county where the proposed ward is found determines that the proposed ward was removed to such county solely for the purposes of filing a petition for the appointment of a guardian and that such court acquired jurisdiction to appoint a guardian because of unjustifiable conduct, such court may take any action authorized by Code Section 29-11-16; or#

3. (3)

   Jurisdiction is otherwise proper under Code Section 29-11-12.#

The petition for appointment of a guardian shall set forth:#

1. (1)

   A statement of the facts upon which the court’s jurisdiction is based;#

2. (2)

   The name, address, and county of domicile of the proposed ward, if known;#

3. (3)

   The name, address, and county of domicile of the petitioner or petitioners and the petitioner’s relationship to the proposed ward, if any, and, if different from the petitioner, the name, address, and county of domicile of the person nominated by the petitioner to serve as guardian and that person’s relationship to the proposed ward, if any;#

4. (4)

   A statement of the reasons the guardianship is sought, including the facts which support the claim of the need for a guardian;#

5. (5)

   Any foreseeable limitations on the guardianship;#

6. (6)

   Whether, to the petitioner’s knowledge, there exists any living will, durable power of attorney for health care, advance directive for health care, psychiatric advance directive, order relating to cardiopulmonary resuscitation, or other instrument that deals with the management of the person of the proposed ward in the event of incapacity and the name and address of any fiduciary or agent named in the instrument;#

7. (7)

   The names and addresses of the following whose whereabouts are known:#

   1. (A)

      The spouse of the proposed ward; and#

   2. (B)

      All children of the proposed ward; or#

   3. (C)

      If there are no adult children, then at least two adults in the following order of priority:#

      1. (i)

         Lineal descendants of the proposed ward;#

      2. (ii)

         Parents and siblings of the proposed ward; and#

      3. (iii)

         Friends of the proposed ward;#

8. (8)

   If known, the name and address of any individual nominated to serve as guardian by the proposed ward, as described in paragraph (1) of subsection (b) of Code Section 29-4-3;#

9. (9)

   If known, the name and address of any individual nominated to serve as guardian by the proposed ward’s spouse, adult child, or parent, as described in paragraph (2), (3), or (4) of subsection (b) of Code Section 29-4-3;#

10. (10)

    Whether any nominated guardian has consented or will consent to serve as guardian;#

11. (11)

    If known, whether any nominated guardian is an owner, operator, or employee of a long-term care or other caregiving institution or facility at which the proposed ward is receiving care, and, if so, whether the nominated guardian is related to the proposed ward by blood, marriage, or adoption;#

12. (12)

    Whether an emergency guardian has been appointed for the proposed ward or a petition for the appointment of an emergency guardian has been filed or is being filed;#

13. (13)

    If known, a disclosure of any ownership or other financial interest that would cause any nominated guardian to have a conflict of interest with the proposed ward;#

14. (14)

    A specific listing of any of the additional powers, as described in subsection (b) of Code Section 29-4-23, that are requested by the guardian and a statement of the circumstances that would justify the granting of additional powers;#

15. (15)

    Whether a guardian or conservator has been appointed in another state or whether a petition for the appointment of a guardian or conservator is pending in another state;#

16. (16)

    That to petitioner’s knowledge, there has been no petition for guardianship denied or dismissed within two years by any court of this state or, if so, that there has been a significant change in the condition or circumstances of the individual, as shown by the accompanying affidavits or evaluation;#

17. (17)

    Any state in which the proposed ward was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of the petition or ending within the six months prior to the filing of the petition; and#

18. (18)

    The reason for any omission in the petition for appointment of a guardian in the event full particulars are lacking.#

1. (1)

   The petition shall be sworn to by two or more petitioners or shall be supported by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical social worker, or, if the proposed ward is a patient in any federal medical facility in which such a physician, psychologist, physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor, or licensed clinical social worker is not available, a physician, psychologist, physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor, or licensed clinical social worker who is authorized to practice in such federal facility.#

2. (2)

   Any affidavit shall be based on personal knowledge and shall state that the affiant has examined the proposed ward within 15 days prior to the filing of the petition and that, based on the examination, the proposed ward was determined to lack sufficient capacity to make or communicate significant, responsible decisions concerning the proposed ward’s health or safety.#

3. (3)

   In addition to stating the facts that support the claim of the need for a guardian, the affidavit shall state the foreseeable duration of the guardianship and may set forth the affiant’s opinion as to any other limitations on the guardianship.#

Within six months prior to the date a minor in the custody of the Division of Family and Children Services of the Department of Human Services reaches 18 years of age, the Division of Family and Children Services may file a petition for the appointment of a guardian for the minor when that minor becomes an adult, in accordance with the provisions of this article, to take effect on or after the date the minor reaches 18 years of age.#