Challenging GuardianshipWhen an individual is no longer able to take care of their basic needs, it may be necessary for a loved one or other concerned party to ask a court to appoint a guardian to make decisions on their behalf.  Situations can arise, however, where a proposed ward disagrees and wishes to challenge this appointment.  In this instance, there are measures in place for challenging guardianship.

What is a guardian?

A guardian is a person appointed by the probate court to be responsible for looking out for another person’s needs.  The guardian will be responsible for making decisions for their ward such as where they live and about their medical care. Depending on the proposed ward’s condition and ability to independently care for themselves, this may or may not be an appropriate option.

The Appointment Process

  • The guardianship process begins when either, the proposed ward, a concerned loved, or other party petition the probate court for the appointment of a guardian. Once the petition is filed, the court will set a date to hear the petition.
  • Before the hearing, if the court believes it necessary, it may order that the individual be examined by a court-appointed doctor or mental health professional who will submit a report of their findings. The proposed ward can also obtain an independent examination by the clinician of their choosing at their own expense or the state’s expenses if they are indigent.
  • If the proposed ward does not have an attorney, the court will appoint a “guardian ad litem” to represent them during the proceedings.
  • During the contested hearing, the individual (through their attorney) can provide evidence such as recent medical exams and witness testimony to establish that they are capable of making their own decisions. They can also cross-examine the opposing side’s witnesses and challenge their evidence.
  • After hearing the evidence, the court or jury will decide if guardianship is needed. The factfinder will need to be convinced that: (1) the proposed ward does not have the understanding or capacity to make or communicate informed decisions, and (2) the appointment of a guardian is necessary to provide for the proposed ward’s supervision and continuing care.

 Challenging the appointment of a guardian often comes down to having experienced counsel to challenge the proposing party’s case and present medical evidence of a person’s mental fitness and ability to care for themselves.

While guardianship may be necessary for some situations, there are steps which can be taken to prepare for an individual’s care without the need for a formal guardian. We understand the issues faced by families with a loved one who may require decision-making assistance and can help you plan for the future.  We are here to help.   Please contact us online or by phone if we may be of assistance.

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