Disclaimer: This article provides general information only and does not constitute legal advice. Consult a qualified attorney for advice about your situation.
Detailed Answer
1. Determine Whether You Need Guardianship or Conservatorship
In Hawaii, a guardian makes personal and health care decisions, while a conservator manages financial affairs. Both arise under Hawaii’s Probate Code, Chapter 560, Article V (HRS § 560-5-101 et seq.). Assess whether your relative’s condition requires decision-making authority over personal care, property, or both.
2. Prepare and File the Petition
File your petition in the Hawaii Circuit Court where the incapacitated person lives. The petition must include:
- The relative’s name, age, address, and nature of alleged incapacity.
- Your name, address, relationship, and proposed role as guardian or conservator.
- A statement of the relief requested and why no less restrictive alternative will meet the person’s needs.
See HRS § 560-5-301 to § 560-5-308 for form and content requirements.
3. Obtain Medical Evaluations
Attach one or more written evaluations by qualified health professionals. Under HRS § 560-5-403, a licensed physician, psychologist, or psychiatrist must certify the person’s functional limitations and need for a guardian or conservator.
4. Serve Notice and Publish
You must notify the alleged incapacitated person, close family, and any court-appointed trustee or current guardian. The petition requires personal service at least 14 days before the hearing and publication in a local newspaper if requested by the court (HRS § 560-5-302).
5. Court Visitor or Investigator’s Report
The court appoints a visitor or investigator to interview the proposed protected person and report on capacity, living situation, and the suitability of the proposed guardian or conservator (HRS § 560-5-404).
6. Attend the Hearing
The court will set a hearing date at least 14 days after service. At the hearing, a judge reviews evidence, hears testimony, and determines whether the person meets the legal definition of “incapacitated.” If the court finds incapacity and that appointment is warranted, it issues an order and letters of guardianship or conservatorship.
7. Comply with Post-Appointment Duties
After appointment, the guardian or conservator must:
- File an acceptance of appointment and, if required, a bond.
- Provide annual accountings and status reports to the court (HRS § 560-5-405).
- Act in the best interests of the protected person at all times.
Helpful Hints
- Start the process early to avoid delays in medical evaluations and notice periods.
- Check local circuit court rules for filing fees and form templates.
- Consider less restrictive alternatives (powers of attorney, health care directives) first.
- Gather detailed medical records to support claims of incapacity.
- Maintain clear communication with family members to reduce conflict.
- Keep copies of all court filings, reports, and accountings for your records.
- Work with a court-appointed visitor or investigator to address concerns promptly.