A Primer on Guardianship — An Introduction

By: David A. (Andy) Hall, Esq., andy@elvilleassociates.com

Potential clients will often come into our office because their loved one is no longer able to manage their financial affairs or health care decisions due to a disabling event or disease. One study suggests that nearly two-thirds of Americans do not have incapacity planning documents. When the disabled person does not have the proper planning documents in place (at minimum, an advance medical directive and financial power of attorney), then their loved ones are unable to make the necessary medical and financial decisions on their behalf. Often the next step for those clients is to file for guardianship of their loved one.

Many clients are often dismayed that guardianship is not a simple process. A husband will often believe that they will naturally be appointed as guardian for his disabled wife without much fuss, but the process may be much more complicated. First, the court will appoint an attorney for the “alleged disabled person”. That term of art is important because it underlines why the courts are very particular in how guardianships proceed. It is up to the “Petitioner”, the one seeking guardianship, to prove that the alleged disabled person (“ADP”) lacks the capacity to make decisions for him or herself. The court wants to make sure that the ADP indeed lacks the capacity prior to taking away that person’s rights.

The court-appointed attorney will meet with her client and ask if they wants to contest the guardianship. The ADP’s answer is critical to how the case unfolds. Sometimes this answer is driven by the ADP’s underlying medical condition and sometimes they refuse to believe that they cannot handle the decisions for themselves as they have always done. If they want to contest the guardianship, then it will proceed like a normal civil case where both parties engage in discovery and the process culminates in a trial. The ADP has a right to a trial by jury or can elect a bench trial (where the judge makes the final decision).

The process may become more complicated if someone else seeks to be appointed guardian as well. This often arises where two siblings battle over who best would care for mom or dad when they are disabled. It is possible for the litigation to be fought between three or more litigants with all sides fighting hard.

Having the right guardianship attorney on your side will help you navigate this complex area of law. It can be maddening to have to fight so hard just to help your loved one, but it’s the unfortunate side of when the proper planning documents are not in place prior to the disabling event or disease.

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