GUARDIANSHIP AND CONTESTED GUARDIANSHIP PROCEEDINGS

I am concerned that a family member or friend has lost the mental capacity to care for him or herself, or to make financial decisions.  What do I do?

I am afraid that an elderly or disabled family member or friend is being taken advantage of by family, caregivers, or relatives. How can I help?

The Court has already appointed a Guardian, but I believe the Guardian is not appropriately caring for their Ward.  Can anything be done?


For a variety of reasons, many elderly and disabled people may end up in situations where they become incapacitated or lack the ability to adequately care for themselves, requiring the installment of a guardian.  An individual’s mental capacity can diminish over time due to dementia or other illness, or suddenly due to a traumatic injury.  

Unfortunately, many individuals do not have advance directives (such as Powers of Attorney or Health Care Surrogates) in place before their capacity diminishes. When this happens, the Court will need to appoint a Guardian – a person who has legal authority to make financial and/or health-care related decisions for the incapacitated individual (the Ward).  Generally, a concerned family member (or close friend) files documents with the Court to start a Guardianship Proceeding.  A Guardianship Proceeding is a multi-step process in which the Court, through medical and psychological evaluations of the individual, determines whether the potential Ward is in fact incapacitated. If the Court determines a Guardianship is proper, then the Court will determine who should be appointed Guardian (or whether the various duties of guardian should be divided among different people). 

Guardianships may also be appropriate where an elderly or disabled person is being taken advantage of by a caregiver, family member, or someone with power of attorney.  If the Court appoints a Guardian, the Court continues to monitor the Guardian it appoints, providing a method of protecting the Ward’s financial interests and personal care. Guardians are often family members of the Ward, although professional guardians are also appropriate in some situations.

Guardianships can be contested.  The potential ward may believe he or she still has the mental capacity to make decisions over their finances, living arrangements, or healthcare.  Disputes may arise as to who should be named Guardian and be able to make decisions regarding the Ward.  These disputes can be expensive and time consuming, and can usually be avoided with proper Estate Planning in advance.  Disputes can also arise where a Court-appointed Guardian is either neglecting to care for a Ward or taking advantage of a Ward, requiring Court intervention.

Guardianships are also available for minors receiving personal injury awards or other funds which require court approval.

Butler Elder Law handles all aspects of Guardianship Proceedings, including contested Guardianship cases. For questions regarding Guardianship, or to plan ahead to avoid a potentially costly and stressful Guardianship Proceeding in the future, contact Butler Elder Law today to schedule an appointment.