Elder Law

Guardianship

Loved ones who lack capacity, do not have the ability to manage essential elements of their personal affairs or protect themselves. In obvious cases they cannot prepare meals, forget to eat, and cannot manage prescribed medications. They are unable to appreciate obvious medical needs or communicate their intentions for the management of their care.  They cannot take basic steps to protect themselves from physical harm- fire, home invasion, or physical abuse. They are unable to manage their financial affairs or protect their assets from wasting or even theft by predators- whether they are strangers or a family member, friend or neighbor pretending to act in their best interest.

A person who lacks capacity requires assistance to manage their affairs. Some individuals may have planned for incapacity by appointing financial and health care agents to make decisions when they are deemed incompetent. However, there are many successful, organized and well-intentioned individuals who do not have documents appointing necessary agents or in some cases they appointed agents who are not qualified to act on their behalf. In those circumstances, concerned family members have little choice but to pursue guardianship, to establish necessary supervision and protection of their loved ones.

A guardianship proceeding is a two-step judicial process to evaluate an individual’s ability to manage essential affairs and then if necessary, appoint appropriate persons to manage personal and financial affairs.

The determination is made after consideration of evidence presented by interested family and friends, as well medical evidence, which sometimes includes a court ordered medical evaluation. If the court determines that an individual lacks capacity, it will then consider evidence as to who is qualified to serve as the guardian of the person (similar to a health care power of attorney) and a guardian of the estate (similar to financial power of attorney).

Competency determinations fall within a wide spectrum. Each situation is unique. In some cases the issue of competency is highly disputed between the individual, family and friends, while other cases involve a more obvious competency determination but family and friends disagree who should serve as the guardian. Depending upon the complexity of the individual circumstances, the legal procedure can be extremely emotional and highly contentious.

Standing alone, the impact of mental incompetency is a significant hardship for all involved- the individual, family and concerned friends. However, the addition of conflict concerning whether intervention is needed, who should act and how they should act is exceptionally difficult.

Often we are called to help concerned family and friends evaluate options to protect the best interests of an individual suffering with compromised mental and/or physical capacity.

We listen to the concerns of families and friends to better understand specific family dynamics and provide an effective plan to protect the best interest of the individual who’s competency is in question, while limiting the negative impacts of the litigation process - for the benefit of all involved, the individual, as well as concerned family and friends. 

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