This is the second installment of a two-part series on the Conservatorship/Guardianship process. My blog on December 19th pointed out how flawed the system is whereas this and yesterday's blog will provide you with vital information on how to go about avoiding and perhaps even defending yourself if this event were to come your way.
The two main reasons why people contest guardianships are because they do not feel the person is incapacitated or they think someone else should serve as the guardian. If you or a loved one is facing the possibility or reality of a guardianship, you need to know how to contest a guardianship.
Contesting the Guardianship
There are several tactics for fighting a guardianship, depending on whether you are challenging the person’s need for a guardian or the choice of who will serve as guardian. The senior can try to prove to the court that she is capable of making decisions for herself and she can communicate those decisions. She can argue that the person advocating for the guardianship has not provided clear and convincing evidence to the contrary.
If the problem is not whether your aging loved one needs a guardian, but rather, who will serve as guardian, you can contest the fitness of the person who is asking the court for appointment as guardian. These contests can get quite nasty since they usually become personal attacks that air private information in a courtroom. You should get as much evidence as possible to show that the proposed guardian is not fit to serve. Financial mismanagement, domestic violence or an improper motive for seeking control of the ward, can cause a judge to refuse to appoint an individual as a guardian. You can ask the court to appoint an organization or agency rather than a person as the guardian.
What the Court Must Find to Grant a Guardianship
A guardianship is a two-step process. First, the judge must decide, based on clear and convincing evidence, that the person does not currently have the capacity to make or communicate appropriate decisions about her welfare. The inability to make the right choices can be the result of dementia, cognitive impairment, injury or illness. The inability to communicate decisions can result from being in a coma, having paralysis, losing speech and language processing due to stroke, or one of many other conditions. When the judge determines the person cannot make or communicate decisions, the person is then legally incapacitated and is a "ward".
The court must then decide who would be an appropriate guardian for the ward. Once declared incapacitated, the ward can no longer enter into valid contracts or make other binding financial decisions. The court must appoint someone who will be responsible for handling those arrangements for the ward.
When the Ward Contests the Guardianship
Some elderly relatives will fight a guardianship because they do not want to give up control or they have a mental health issue that causes them to be paranoid and distrustful of everyone. This type of senior might sound articulate in court, even if he makes poor self-care decisions out of court. When the person over whom people are trying to get a guardianship fights the process, it can be difficult to get the judge to order in favor of guardianship.
Adult children sometimes have to face the unpleasant task of considering whether an aging loved one can take care of himself. The senior might be suffering from Alzheimer’s or some other form of dementia, or may have cognitive impairment from some other cause. In some situations, a guardianship is needed to protect the senior from exploitation, abuse or neglect. The decision may come down to the safety of your loved one.
This posting discusses the general law. The laws may be different in your state, so be sure to talk with an elder law attorney in your area.
American Bar Association. “He ain’t heavy, he’s my brother: Contested guardianships and interstate guardianship issues.” (accessed November 29, 2017) https://www.americanbar.org/content/dam/aba/events/real_property_trust_estate/symposia/2011/rpte_symposia_2011_m2935_te_contested_guardianships.authcheckdam.pdf
Legal Aid Center of Southern Nevada. “Objecting to a Guardianship.” (accessed November 29, 2017) https://www.familylawselfhelpcenter.org/self-help/guardianship/objecting-to-a-guardianship