Potential clients will often come into our office because their loved one is no longer able to manage their financial affairs or health care decisions due to a disabling event or disease. One study suggests that nearly two-thirds of Americans do not have incapacity planning documents. When the disabled person does not have the proper planning documents in place (at minimum, an advance medical directive and financial power of attorney), then their loved ones are unable to make the necessary medical and financial decisions on their behalf. Often the next step for those clients is to file for guardianship of their loved one. Many clients are often dismayed that guardianship is not a simple process. A husband will often believe that they will naturally be appointed as guardian for his disabled wife without much fuss, but the process may be much more complicated. First, the court will appoint an attorney for the “alleged disabled person”. That term of art is important because it underlines why the courts are very particular in how guardianships proceed. It is up to the “Petitioner”, the one seeking guardianship, to prove that the alleged disabled person (“ADP”) lacks the capacity to make decisions for him or herself. The court wants to make sure that the ADP indeed lacks the capacity prior to taking away that person’s rights. The court-appointed attorney will meet with her client and ask if they wants to contest the guardianship. The ADP’s answer is critical to how the case unfolds. Sometimes this answer is driven by the ADP’s underlying medical condition and sometimes they refuse to believe that they cannot handle the decisions for themselves as they have always done. If they want to contest the guardianship, then it will proceed like a normal civil case where both parties engage in discovery and the process culminates in a trial. The ADP has a right to a trial by jury or can elect a bench trial (where the judge makes the final decision). The process may become more complicated if someone else seeks to be appointed guardian as well. This often arises where two siblings battle over who best would care for mom or dad when they are disabled. It is possible for the litigation to be fought between three or more litigants with all sides fighting hard. Having the right guardianship attorney on your side will help you navigate this complex area of law. It can be maddening to have to fight so hard just to help your loved one, but it’s the unfortunate side of when the proper planning documents are not in place prior to the disabling event or disease.
All
advance medical directive
Blog
Videos & Webinar Recordings
News
Estate Planning
estate
financial power of attorney
financial planning
Probate
Wills and Trusts
beneficiary
elder law
estate plan
Spotlight
attorney
digital assets
elville and associates
financial planners
guardianship
guardianships
Healthcare
income tax
inheritance
power of attorney
public benefits
special needs planning
trust
will
Access to Music
advance medical directives
Aid & Attendance
Attorney-Client Relationship
Beneficiaries
Beneficiary Designations
Business Planning
capital gain
Charles A. Borek
Client Care Program
Consultations
Coronavirus (COVID-19)
Creative Arts
Education
elder care
Elville Center
Elville Center for the Creative Arts
Estate and Trust Administration
estate litigation
estate planning attorney
Estate Taxes
family
Governor Hogan
guardian
guardianship of the person
in terrorem clause
incapacity planning
including the location
Justin M. Ginsburg
letter of wishes
Music
National Health Crisis
National Healthcare Decisions Day
nationwide health crisis
non-probate assets
planning attorney
powers of attorney
probate assets
Proper Beneficiary Designations
Remote Notarization of Documents
Retirement Accounts
Retirement Plan Assets
revision
revocable living trust
Schools
Secure Act
social security administration
social security disability insurance
social security,
Special Needs
special needs trust
spendthrift clause
spendthrift clauses
spendthrift trust
ssi
Super Lawyers
supplemental security income
survivorship
tax
Tax Planning
testator
the business monthly
The Elville Center for the Creative Arts
The Secure Act
Trust Protector
Trust Protectors
trusts
updating of your will
Verena
veterans administration
Waypoint Trust Group