What is guardianship and do I need it? Guardianship is the court process whereby an individual (usually a family member) is appointed by the court to make health care and/or financial decisions form someone who the court has deemed incompetent and not able to make those decisions him or herself. It is what the court calls, “the means of last resort” because the court prefers alternatives over guardianship because it is so restrictive. Such alternatives are powers of attorney, joint account ownership, etc.
Guardianship is taken by the court very seriously. Why? The answer is actually simple. When a person is incarcerated in prison, he or she has lost their liberty, i.e., their ability to make their own decisions. With guardianship, even though it is a civil matter and not criminal, the court is making a determination that a person is not competent based on medical evidence, and essentially taking that person’s rights away to make medical and financial decisions from that point forward. The only way to get guardianship removed is to prove that the medical condition no longer exists or the person has regained the ability to make their own decisions.
Because this is such an important proceeding, the legislature has felt it necessary that when a guardianship petition is filed in the court, the court shall appoint a member of the bar (an attorney) to represent the alleged disabled person (ADP for short) during the process. That attorney is referred to as the Court-Appointed Counsel or CAC. The CAC is responsible for representing the ADP and asserting their wishes and instructions regardless of their physical or mental status. That means that if a person with end-stage Alzheimer’s Disease does not believe anything is wrong and does not want a guardian, it is the CAC’s job to tell the court the ADP does not want a guardian.
Additionally, as part of the job of a CAC, he or she may also interview family members, review medical records, request depositions of medical professionals, and although very rare, conduct a jury trial on behalf of the ADP if competency is strongly contested. Often times, the ADP is either unconscious or non-communicative due to a disease or physical trauma, like a head injury. The court will regularly call on the CAC to opine as to the best-suited person to serve as guardian because the CAC is the court’s eyes and ears during the guardianship process.
Since the guardianship process can be very intense and contentious, it is best to be prepared and get your estate planning documents in order. The best part about estate planning is YOU get to choose who makes those difficult medical and financial decisions. If a guardianship is initiated, you may not get who you want. For example, you might not get along with your child, and would prefer your sibling be your guardian; however, if a guardianship is initiated, your child stands in a higher priority of appointment than your sibling. Therefore, if the matter is contested, your sibling would have to prove that he/she is better suited to be your guardian than your child. So as parting words of wisdom…make sure you are prepared! Get your estate planning documents together so you can avoid guardianship at all costs! Call the attorneys at ERA Law Group, LLC today at (410) 919-1790.