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Guardianship and Conservatorship Litigation

There are two main considerations for the Court in litigation of a Guardianship or Conservatorship case.

  1. Does the person need a guardian and/or conservator?
  2. If the person needs a Guardian or Conservator who should be appointed?

Disagreements Over Whether the Person Needs A Guardian/Conservator

The Court must first find that the person who is alleged to be incapacitated needs a guardian or conservatorship.

A guardianship/conservatorship action is a legal proceeding to take away an adult’s constitutional rights to make decisions about their person and finances. The alleged incapacitated person will be appointed an attorney. If you are seeking to become the guardian/conservator of your loved one such as, a parent, brother, sister, adult child and that loved one does not agree that they need a guardian/conservator you will have to prove your case. This could mean a trial, expert witnesses, subpoenas for witnesses and document discovery. At trial there will be testimony potentially from physicians, other professionals, the person seeking to become the guardian/conservator, the person who allegedly needs a guardian/conservator, friends, and family.

Disagreements Over Who Should be Appointed

Sometimes it is clear the person needs a guardian/conservator but the alleged incapacitated person or their family do not agree on who should be appointed.

The most common situations are:

  1. Divorced or unmarried parents who both want to be the sole guardian for their child.
  2. A parent who does not want his/her kids telling them what to do.
  3. Siblings who do not agree on what is best for their parents.
  4. Second marriage when the current spouse and the step-children do not agree on what is best for their mom or dad.

If the court finds that the person is incapacitated and in need of protection through a guardianship or conservatorship the court must appointment a suitable person to act as guardian and conservator.

Assessing the risks- Carefully weighing the pros and cons of initiating a guardianship/conservatorship action is critical.

The pros are protection and safety of your loved one.

But there are also cons. There are possible financial risks to you, if you do not succeed with the appointment of a guardian/conservator you may be responsible for the attorneys fees and costs. There are emotional risks, that your loved one may be angry with your attempt to take control of their life and may not appreciate that it was done out of love and a desire to protect them. It is important to evaluate if the time is right to file or if there are other less intrusive options.

Other types of guardianship/conservatorship litigation:

  • End-of-life medical treatment for the person subject to guardianship
  • Where the person should live
  • Access to visit the person subject to guardianship
  • Management of the person’s money

Assessing the risks

Guardianship and conservatorship litigation is a complicated issue that involves assessing the risks involved and the needs of the person. It is important to evaluate the likelihood of success and potential alternative legal options. We can help you assess your case to determine the best course action that meets your goals to protect your loved one. Kile & Kupiszewski law firm has successfully litigated and resolved many guardianship and conservatorship cases. Call us today to schedule a consultation 480-348-1590.

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