Guardianship

Guardianship is a legal proceeding in which a person (the Petitioner) asks the Court to appoint someone (a Guardian or Guardians) to protect their loved one (the Ward) who, through injury, illness, or old age, is no longer capable of managing their own affairs. Guardianship is intrusive, degrading, and expensive to the Ward, and should be considered only as a last resort.

In a guardianship case, the Court will determine three issues: the capacity of the subject; the existence of any lesser restrictive alternatives to guardianship; and who should be appointed as guardian. In every guardianship case the Court is required to appoint an attorney for the Ward to represent the Ward’s stated interests regarding each of those three issues, although the Ward has the right to replace the court appointed attorney with an attorney of their choice. If a guardian is appointed, then the Ward’s attorney will be paid from the Ward’s assets.

A guardianship proceeding normally takes from six weeks to two months to complete. If the Ward’s health or assets are in immediate danger, the Court may appoint an Emergency Temporary Guardian to protect the Ward until the guardianship proceeding can be completed.

Regarding capacity, the Court will also appoint a three-member examining committee consisting of a medical doctor, a psychiatrist or psychologist, and a layperson. Each of the three committee members will interview the Ward, usually for between 15 and 30 minutes, and file a report giving their opinion of whether or not the Ward has the mental and physical capacity to exercise their own rights. The Ward and other interested persons have the right to offer other evidence regarding the Ward’s capacity, but the Court often relies heavily on the examining committee reports. If the Ward is found to not lack capacity at all, then the case ends,and the Petitioner may be forced to pay the legal fees of the court appointed attorney. For that reason, no one should start a guardianship unless they are confident that the Ward will be found to lack capacity.

If the Ward is found to be unable to exercise some of their rights, then those rights will be removed by the Court and may be delegated to a guardian or guardians. However, before a guardian can be appointed, the Court will review any documents the Ward executed prior to becoming incapacitated, including advanced directives and estate planning documents, to see if those documents are enough to protect the Ward without the appointment of a guardian. In a contested guardianship, the validity of such documents is often questioned, especially if the Ward has been losing capacity gradually over a long period of time during which they may have been heavily influenced by someone who did not have the Ward’s best interests at heart. If the existing documents are found to adequately protect the Ward, then no guardian will be appointed. If there are no such documents or if they are not sufficient, then the Court will consider who to appoint as guardian for the Ward.

On the issue of who to appoint as guardian, the Court will give preference to a designated preneed guardian, will strongly consider anyone who the Ward expressed trust and confidence in when executing other advanced directives and estate planning documents, will take into account the wishes the Ward expresses to their attorney (when possible), and all of the other circumstances surrounding the Ward and the others involved. Even when the entire family agrees that the Ward needs a guardian, they may fight over who should be that guardian, often due to issues of mistrust and a need to control.

A contested guardianship will often include many additional issues, including ones regarding interpretation of the law, technicalities of the legal process, and the collection and admission of evidence.If you or someone you know thinks that a guardianship should be brought or is the potential Ward in a guardianship, I highly recommend that you hire an attorney to represent you.