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Due Process

Due Process

Because establishing guardianship is a legal process that involves the removal of the individual’s rights, considerable due process protection often exists when the guardianship is established. They include:

  • Notice to the individual of all proceeding
  • Representation of the individual by counsel
  • Attendance of the individual at all hearings/court proceedings
  • Ability of the individual to compel, confront and cross examine all witnesses
  • Allowance of the individual to present evidence
  • Appeal of the individual to the determination of the court
  • Presentation of a clear and convincing standard of proof
  • The right of the individual to a jury trial

Individual rights removed and due process rights may vary from state to state, the final authority is the state statues where the person with the disability lives. In any type of guardianship the court may limit the guardian’s authority. The guiding principle in all guardianship is that of least intrusive measures to assure as much autonomy as possible. The guardian’s authority is defined by the court, and the guardian may not operate outside that authority. A guardian may be a family member or friend or a public or private entity appointed by the court.

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