Hawaii Adult Guardianship / Conservatorship Petition Packet

HAWAII ADULT GUARDIANSHIP / CONSERVATORSHIP PETITION PACKET

Family Court / Circuit Court (Probate Division) Filing Packet — HRS Chapter 560, Article 5

PART 1 — PRE-PETITION CHECKLIST

Petitioner / Counsel: [_________________________________________]
Respondent (AIP): [_________________________________________]
Date of intake: [__/__/____]

1.1 Standing — HRS § 560:5-304(a)

☐ Petitioner is the respondent OR a person interested in respondent's welfare
☐ Respondent is age 18 or older
☐ Venue confirmed — circuit where AIP resides or is present
☐ Filing court: ☐ Family Court (1st Circuit) ☐ Circuit Court Probate Division (2nd/3rd/5th)

1.2 Statutory Definition of "Incapacitated Person" — HRS § 560:5-102

"An individual who, for reasons other than being a minor, is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance."

1.3 Less Restrictive Alternatives Considered

☐ Supported decision-making
☐ Durable POA for finances (HRS § 551E — Uniform POA Act)
☐ POA for health care / advance directive (HRS § 327E — Uniform Health-Care Decisions Act)
☐ Designated surrogate under HRS § 327E-5(f)
☐ Mental health care directive (HRS § 327G)
☐ Representative payee (SSA)
☐ VA fiduciary
☐ Joint account, ABLE account
☐ Trust (revocable / SNT)
☐ Reciprocal beneficiary or family caregiver support
☐ Adult Protective Services (HRS § 346-222 et seq. — Adult Protective Services Law)

Explanation of insufficiency: [_________________________________________]

1.4 Documents to Collect

☐ Physician's or psychologist's letter/evaluation regarding capacity
☐ Asset/debt inventory
☐ Income statement
☐ Existing POA, advance directive, will, trust
☐ Names/addresses of spouse / reciprocal beneficiary, adult children, parents, siblings
☐ Proposed guardian's background information
☐ Filing fee or fee waiver application

1.5 Type of Proceeding

☐ Limited guardianship of an incapacitated person
☐ Unlimited (plenary) guardianship
☐ Limited conservatorship
☐ Full conservatorship
☐ Combined guardianship and conservatorship
☐ Emergency / temporary guardianship — HRS § 560:5-312

PART 2 — VERIFIED PETITION FOR APPOINTMENT OF GUARDIAN AND/OR CONSERVATOR

STATE OF HAWAII
[☐ FAMILY COURT OF THE FIRST CIRCUIT ☐ CIRCUIT COURT OF THE [_______] CIRCUIT, PROBATE DIVISION]

Case No.: [_______________________]

VERIFIED PETITION FOR APPOINTMENT OF A GUARDIAN OF AN INCAPACITATED PERSON AND/OR CONSERVATOR

COMES NOW Petitioner, [PETITIONER FULL NAME], pursuant to HRS §§ 560:5-304 and 560:5-404, and respectfully petitions this Court as follows:

2.1 Petitioner — HRS § 560:5-304(b)

1. Name: [_________________________________________]
2. Residence: [_________________________________________]
3. Current mailing address (if different): [_________________________________________]
4. Telephone: [(___) ___-____] Email: [______________________]
5. Relationship to respondent: [_________________________________________]
6. Interest in appointment: [_________________________________________]
7. Attorney for Petitioner: [_________________________________________]
   Hawaii Bar No.: [____________] Address: [_________________________________________]

2.2 Respondent — HRS § 560:5-304(b)(1)

8. Full legal name: [_________________________________________]
9. Age: [____] Date of birth: [__/__/____]
10. Principal residence: [_________________________________________]
11. Current street address (if different): [_________________________________________]
12. Address of proposed dwelling if appointment is made: [_________________________________________]

2.3 Persons Entitled to Notice — HRS § 560:5-304(b)(2)–(6), § 560:5-309

2.4 Proposed Guardian — HRS § 560:5-304(b)(7)

13. Name and address: [_________________________________________]
14. Relationship to respondent: [_________________________________________]
15. Reason proposed guardian should be selected: [_________________________________________]
16. Priority basis under HRS § 560:5-310: [_________________________________________]

2.5 Reason Guardianship is Necessary — HRS § 560:5-304(b)(8)

17. Brief description of nature and extent of respondent's alleged incapacity:
    [____________________________________________________________]
    [____________________________________________________________]

18. Specific decision-making areas where respondent lacks capacity:
    ☐ Health care
    ☐ Residence
    ☐ ADLs
    ☐ Financial management
    ☐ Contracts
    ☐ Other: [_______________________________]

2.6 Scope of Guardianship — HRS § 560:5-304(b)(9)

☐ Unlimited — reason limited guardianship is inappropriate: [_________________________________________]
☐ Limited — specific powers to be granted: [_________________________________________]

2.7 General Statement of Property — HRS § 560:5-304(b)(10)

2.8 Conservatorship Allegations (if applicable) — HRS § 560:5-404

19. Reason a conservator is needed: [_________________________________________]
20. Estimated annual income/expenses: [_________________________________________]
21. Proposed conservator: [_________________________________________]
22. Bond proposed: ☐ Yes $[___________] ☐ Request waiver — reason: [____________]

2.9 Prayer for Relief

WHEREFORE, Petitioner prays this Court:

A. Set this matter for hearing pursuant to HRS § 560:5-305;
B. Appoint a kokua kanawai (court visitor) and/or guardian ad litem pursuant to HRS § 560:5-305 and § 560:5-306 to investigate and report;
C. Order an examination of respondent by a physician or other qualified professional pursuant to HRS § 560:5-306;
D. Direct service of notice on respondent and interested parties pursuant to HRS § 560:5-309 (at least 14 days before hearing under Hawaii Probate Rule 3);
E. After hearing, find respondent an incapacitated person and appoint [Petitioner / proposed guardian/conservator] as [☐ limited ☐ unlimited] guardian and/or conservator pursuant to HRS §§ 560:5-311 and 560:5-410;
F. Require bond from the conservator pursuant to HRS § 560:5-411;
G. Grant such other relief as is just and proper.

Respectfully submitted this [____] day of [______________], 20[____].

___________________________________
[PETITIONER SIGNATURE]
[PRINTED NAME]

___________________________________
[ATTORNEY FOR PETITIONER] (if any)
Hawaii Bar No. [____________]

VERIFICATION

STATE OF HAWAII )
[CITY/COUNTY OF [______________]] ) ss.

I, [PETITIONER NAME], being first duly sworn, state under penalty of perjury under the laws of the State of Hawaii that I have read the foregoing Verified Petition and the facts stated are true and correct to the best of my knowledge, information, and belief.

___________________________________
[PETITIONER SIGNATURE]

Subscribed and sworn before me this [____] day of [______________], 20[____].

___________________________________
Notary Public, State of Hawaii
My commission expires: [__/__/____]

PART 3 — NOTICE TO RESPONDENT (HRS § 560:5-309)

TO: [RESPONDENT NAME], Respondent

You are notified that a Verified Petition has been filed in the [☐ Family Court of the First Circuit ☐ Circuit Court of the ____ Circuit, Probate Division], Case No. [_______________________], asking the Court to find you incapacitated and to appoint a guardian and/or conservator for you. This proceeding may significantly limit your legal rights, including:

• Right to make decisions about your medical care
• Right to choose where you live
• Right to manage your money and property
• Right to vote (in some cases)
• Right to enter into contracts

YOUR RIGHTS:

1. Right to be present at the hearing in person or by remote means.
2. Right to legal counsel. The Court may appoint a lawyer to represent you if the Court determines your interests are inadequately represented (HRS § 560:5-305(d); Hawaii Probate Rule).
3. Right to a kokua kanawai or guardian ad litem appointed by the Court (HRS § 560:5-306).
4. Right to present evidence and cross-examine witnesses, including the court-appointed physician and kokua kanawai.
5. Right to request a closed hearing.

HEARING:

• Date: [__/__/____]
• Time: [____]:[____] [☐ a.m. ☐ p.m.]
• Judge: [______________________]
• Location: [______________________]
• Method: ☐ In person ☐ Video / telephonic (under HPR Rule 11)

A copy of the Verified Petition is served with this Notice. Notice must be served on you personally at least fourteen (14) days before the hearing.

Dated: [__/__/____]

___________________________________
[PETITIONER / COUNSEL SIGNATURE]

PART 4 — NOTICE TO INTERESTED PARTIES (HRS § 560:5-309; HPR Rule 7)

TO: [NAME OF INTERESTED PARTY]

You are notified that [PETITIONER] has filed a Verified Petition in [☐ Family Court of the First Circuit ☐ Circuit Court of the ____ Circuit, Probate Division], Case No. [_______________________], seeking the appointment of a guardian and/or conservator for [RESPONDENT NAME].

Hearing: [__/__/____] at [____]:[____] [☐ a.m. ☐ p.m.], Judge [______________________].

You may attend the hearing and be heard. To object, you must file a written response with the Court at least seven (7) days before the hearing (Hawaii Probate Rule 3(e)) and serve a copy on Petitioner's counsel. Failure to file a timely response may be deemed consent.

Service must be made at least fourteen (14) days before the hearing under HRS § 560:5-309 and Hawaii Probate Rule 7.

Dated: [__/__/____]

___________________________________
[PETITIONER / COUNSEL SIGNATURE]

PART 5 — PHYSICIAN'S / EXAMINER'S REPORT (HRS § 560:5-306)

REPORT OF PHYSICIAN / QUALIFIED PROFESSIONAL EXAMINER

Re: [RESPONDENT NAME] Case No.: [_______________________]

I, Dr. [______________________], a licensed [☐ physician ☐ psychologist ☐ APRN ☐ other qualified professional], License No. [____________], having personally examined the above-named individual, submit the following pursuant to HRS § 560:5-306:

5.1 Examination

• Date(s) of examination: [__/__/____]
• Location: [_________________________________________]
• Duration: [____] hours
• Records reviewed: [_________________________________________]

5.2 Diagnoses

• Primary diagnosis (ICD-10): [_________________________________________]
• Secondary diagnoses: [_________________________________________]
• Etiology: [_________________________________________]

5.3 Statutory Standard — HRS § 560:5-102

Is respondent unable to receive and evaluate information or make or communicate decisions to such an extent that respondent lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance?

☐ Yes — explain: [_________________________________________]
☐ No

5.4 Functional Assessment

5.5 Prognosis and Recommendations

• Prognosis: ☐ Improving ☐ Stable ☐ Declining
• Expected duration: [____________]
• Hearing attendance: ☐ Can attend ☐ Should be excused — reason: [____________]
• Recommended scope of guardianship: ☐ None ☐ Limited ☐ Unlimited
• Recommended less restrictive supports / technological assistance: [_________________________________________]

I certify under penalty of perjury that the foregoing is true and accurate.

___________________________________
Dr. [______________________]
License No. [____________]
Date: [__/__/____]

PART 6 — APPOINTMENT OF KOKUA KANAWAI / GUARDIAN AD LITEM (HRS §§ 560:5-305, 560:5-306; HPR Rule 28)

The Court, upon filing of the Verified Petition, ORDERS:

6.1 Kokua Kanawai (Court Visitor)

[KOKUA KANAWAI NAME] is appointed as kokua kanawai pursuant to HRS § 560:5-306. The kokua kanawai shall:

a. Personally meet with respondent;
b. Explain to respondent the nature of the proceeding, respondent's rights, and possible consequences;
c. Interview the proposed guardian/conservator;
d. Visit respondent's present and proposed places of residence;
e. Investigate the need for guardianship and less restrictive alternatives;
f. Investigate whether respondent's interests are adequately represented;
g. File a written report with the Court at least ten (10) days before the hearing (or as ordered).

6.2 Guardian Ad Litem / Counsel (HRS § 560:5-305(d); HPR Rule 28(b))

[ATTORNEY NAME], Hawaii Bar No. [____________], is appointed as [☐ guardian ad litem ☐ counsel] for respondent. The appointee shall investigate, advocate, and report as required by HPR Rule 28.

Date: [__/__/____]

___________________________________
Judge

PART 7 — LESS RESTRICTIVE ALTERNATIVE ANALYSIS

Petitioner's statement: [_________________________________________]

___________________________________
[PETITIONER SIGNATURE]

PART 8 — BOND (HRS § 560:5-411)

ORDER REQUIRING / WAIVING BOND

Pursuant to HRS § 560:5-411, the Court ORDERS:

☐ Conservator shall file bond in the penal sum of $[___________], with [☐ corporate surety ☐ personal surety] approved by the Court.
☐ Bond is waived because:
☐ All interested persons consent in writing
☐ Estate consists solely of restricted accounts requiring court order
☐ Other good cause: [_________________________________________]

Bond shall be filed before Letters issue.

Date: [__/__/____]

___________________________________
Judge

PART 9 — NOTICE OF HEARING

STATE OF HAWAII — [☐ FAMILY COURT OF THE FIRST CIRCUIT ☐ CIRCUIT COURT OF THE _______ CIRCUIT, PROBATE DIVISION]

Case No.: [_______________________]
In the Matter of [RESPONDENT NAME]

NOTICE IS HEREBY GIVEN that a hearing on the Verified Petition for Appointment of a Guardian of an Incapacitated Person and/or Conservator will be held:

• Date: [__/__/____]
• Time: [____]:[____] [☐ a.m. ☐ p.m.]
• Judge: [______________________]
• Location: [______________________]
• Method: ☐ In person ☐ Telephonic/video (HPR Rule 11)

Notice is given pursuant to HRS § 560:5-309 and Hawaii Probate Rules 3 and 7. Service on respondent and other notice parties must be made at least fourteen (14) days before the hearing.

Dated: [__/__/____]

___________________________________
Clerk of Court

PART 10 — FINAL ORDER OF APPOINTMENT AND LETTERS (HRS §§ 560:5-311, 560:5-314)

ORDER APPOINTING [☐ LIMITED ☐ UNLIMITED] GUARDIAN [AND CONSERVATOR]

This matter came before the Court on [__/__/____]. The Court considered the Verified Petition, the physician/examiner report under § 560:5-306, the kokua kanawai's report, the GAL's report (if appointed), and the testimony presented.

The Court FINDS by clear and convincing evidence that:

1. Respondent is an incapacitated person within the meaning of HRS § 560:5-102;
2. Respondent's identified needs cannot be met by less restrictive alternatives, including supports, services, and technological assistance;
3. The proposed guardian/conservator is qualified, suitable, and willing to serve, and has priority (or priority is appropriately deviated from) under HRS § 560:5-310;
4. The least restrictive form of guardianship/conservatorship necessary is [☐ limited ☐ unlimited].

IT IS ORDERED:

A. [NAME] is appointed [☐ Limited ☐ Unlimited] Guardian of [RESPONDENT NAME], an incapacitated person.
B. [NAME] is appointed [☐ Limited ☐ Unlimited] Conservator of the Estate of [RESPONDENT NAME].
C. Guardian's powers and duties (HRS § 560:5-314): [_________________________________________]
D. Conservator's powers: [_________________________________________]
E. Rights retained by respondent: [_________________________________________]
F. Bond: ☐ $[___________] ☐ waived.
G. Letters of Guardianship and Letters of Conservatorship shall issue upon acceptance of appointment and posting of bond.
H. Inventory due within ninety (90) days per § 560:5-417; annual accountings per § 560:5-418; guardian shall file annual report per § 560:5-317.

Date: [__/__/____]

___________________________________
Judge

LETTERS OF GUARDIANSHIP

The Clerk hereby certifies that [GUARDIAN NAME] has been duly appointed and qualified as Guardian of [RESPONDENT NAME], an incapacitated person, with the powers set forth in the Order of Appointment, and is authorized to act as such.

Dated: [__/__/____] Seal: [____]

___________________________________
Clerk of Court

LETTERS OF CONSERVATORSHIP

The Clerk hereby certifies that [CONSERVATOR NAME] has been duly appointed and qualified as Conservator of the Estate of [RESPONDENT NAME], a protected person, having posted bond in the amount of $[___________] (or bond waived), and is authorized to act as such.

Dated: [__/__/____] Seal: [____]

___________________________________
Clerk of Court

PART 11 — INITIAL INVENTORY & ANNUAL ACCOUNTING/REPORT REFERENCE (HRS §§ 560:5-317, 560:5-417, 560:5-418)

11.1 Initial Inventory (Conservator) — within 90 days of appointment

11.2 Annual Reporting and Monitoring — HRS §§ 560:5-317, 560:5-418

• Guardian's annual report (§ 560:5-317): respondent's residence and condition; services received; visitation/contact summary; statement of any significant changes; recommendation regarding need for continued guardianship.
• Conservator's annual accounting (§ 560:5-418): receipts, disbursements, balances; bank/brokerage statements; reviewed by court master under HPR Rule 27/29 as ordered.
• Filed with the Court and served on respondent, GAL, and interested persons under HPR Rule 25.

11.3 Recordkeeping

☐ Separate fiduciary account titled "[NAME], Conservator for [RESPONDENT NAME]"
☐ No commingling of funds
☐ Retain receipts/statements 7 years
☐ Court approval required for sale of real estate, distributions outside ordinary maintenance, and self-dealing
☐ Confidentiality of records under HRS § 560:5-307

SOURCES AND REFERENCES

• HRS Chapter 560, Article 5 — Uniform Guardianship and Protective Proceedings Act: https://www.capitol.hawaii.gov/hrscurrent/Vol12_Ch0501-0588/HRS0560/
• Hawaii Probate Rules (eff. March 1, 1995, with amendments): https://www.courts.state.hi.us/
• Hawaii Family Court Pro Se Packet — Guardianship of an Incapacitated Person (Form 1FP2020)
• HRS Chapter 327E — Uniform Health-Care Decisions Act
• HRS Chapter 551E — Uniform Power of Attorney Act
• HRS Chapter 346 (Part X) — Adult Protective Services
• Geriatrics Education Resource — Guardianship and Conservatorship in Hawaii (JABSOM)

END OF HAWAII ADULT GUARDIANSHIP / CONSERVATORSHIP PETITION PACKET