What happens if a propose protected person disagrees with my guardianship action?
The person who you claim needs a guardian has the right to contest your assertion and they also have the right to a trial. Other people who may disagree are family members who also have a priority for appointment as the person’s guardian. The threshold question for the Court in a Guardianship is, does the proposed protected person need a guardian? If the answer is n”o” the case is over. If the answer is “yes” that means there is sufficient evidence that the person is incapacitated, and the next question for the Court is who should be appointed as guardian?
Disagreements Over Whether the Person Needs A Guardian/Conservator:
The Court must first find that the proposed protected person who is alleged to be incapacitated is in need of a guardian.
A guardianship action is a legal proceeding to take away an adult’s constitutional right to make decisions about their person. The burden is very high to prove a person needs a guardian because it is a constitutional matter. We’re all familiar with the burden of proof in a criminal matter, beyond a reasonable doubt. The burden in a guardianship case is the next highest burden of proof in our system, clear and convincing evidence. Practically speaking, this means if it is not clear the person is incapacitated you won’t be to prove your case.
Since this is a constitutional matter, the proposed protected person will be appointed an attorney like they would in a criminal case. If you are seeking to become the guardian/conservator of your loved one such as a parent, brother, sister or adult child and that loved one does not agree that they need a guardian/conservator, you will have to prove your case by clear and convincing evidence. 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 statutes have priorities for appointment of a guardian. The priorities for relatives are:
1. A person nominated by the proposed protected person.
2. The person’s spouse.
3. An adult child.
4. The person’s parent.
The Court can also appoint a person who is not in priority if there is good cause to do so.
The most common situations in which disagreement over who should be appointed are:
1. Divorced or unmarried parents who both want to be the sole guardian for their child.
2. Siblings who do not agree on what is best for their parents.
3. A second marriage when the current spouse and the step-children do not agree.
Carefully weighing the pros and cons of initiating a guardianship 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 you may be responsible for the attorney’s 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.
The decision to seek guardianship over a loved one is a complicated issue that involves assessing the risks involved and the needs of the person. It is important to evaluate both the likelihood of success and potential alternative legal options. We can help you assess your case to determine the best course of action that meets your goals to protect your loved one. The Kile & Kupiszewski Law Firm has successfully litigated and resolved many guardianship and conservatorship cases. Call us today to make an appointment at (480) 348-1590, or book an appointment online. Best wishes to you and your family.
Written by: Jennifer Kupiszewski, Esq.
The lawyer disclaimer: We hope you find this informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since this was written, the greater the likelihood that the information might be out of date.
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