Section 5-306
(a)
The court shall exercise the authority conferred in this part so as to encourage the development of maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person's limitations or other conditions warranting the procedure.
(b)
Upon hearing, the court may appoint a guardian as requested if it finds that:
- (1) a qualified person seeks appointment;
- (2) venue is proper;
- (3) the required notices have been given;
- (4) any required medical certificate is dated and the examination has taken place within 30 days prior to the hearing;
- (5) any required clinical team report is dated and the examinations have taken place within 180 days prior to the filing of the petition;
- (6) the person for whom a guardian is sought is an incapacitated person;
- (7) the appointment is necessary or desirable as a means of providing continuing care and supervision of the incapacitated person; and
- (8) the person's needs cannot be met by less restrictive means, including use of appropriate technological assistance.
The court, on appropriate findings, may enter any appropriate order, or dismiss the proceedings.
(c)
The court, at the time of appointment or later, on its own motion or on appropriate petition or motion of the incapacitated person or other interested person, may limit the powers of a guardian otherwise conferred by parts 1 to 4, inclusive, of this article and thereby create a limited guardianship. Any limitation on the statutory power of a guardian of an incapacitated person shall be endorsed on the guardian's letters. Following the same procedure, a limitation may be removed or modified and appropriate letters issued.
Comment
The purpose of subsections (a) and (c) is to remind an appointing court that a guardianship under this legislation should not confer more authority over the person of the incapacitated person than appears necessary to alleviate the problems caused by the person's incapacity. This is a statement of the general principle underlying a “limited guardianship” concept. For example, if the principal reason for the guardianship is the incapacitated person's inability to comprehend a personal medical problem, the guardian's authority could be limited to making a judgment, after evaluation of all circumstances, concerning the advisability and form of treatment and to authorize actions necessary to carry out the decision. Or, if the incapacitated person's principal problem stems from memory lapses and associated wanderings, a guardian with authority limited to making arrangements for suitable security against this risk might be indicated. Subsection (c) facilitates use by the appointing court of a trial-and-error method to achieve a tailoring of the guardian's authority to changing needs and circumstances. Section 5-106 authorizes use of any public or charitable agency that demonstrates interest and competence in evaluating the condition and needs of the incapacitated person in arriving at a decision regarding the appropriate powers of the guardian.
The section does not authorize enlargement of the powers of a guardian beyond those described in § 5-309 and related sections. Rather, limitations on a guardian's § 5-309 powers and duties may be imposed and removed.