Guardianship Disputes: What Decisions Can The Court Make?
A probate court may make a decision to appoint a guardian when an adult becomes incapable or cannot make important decisions independently. In most circumstances, the guardian is the next of kin ( it can be a spouse or a grownup child) or another loved one, and there are no severe challenges or disagreements in establishing guardianship of an adult or a child.
Unfortunately, disputes might arise when the proposed ward claims to be competent in making their own decisions or when a family member claims that the proposed guardian is unfit to care for the proposed ward. If you disagree about who should be the guardian or whether a guardian is necessary, having an experienced lawyer on your side can assist you in proceeding with the guardianship petition or appointment.
How To Fight A Guardianship Case
Guardianship is the Court’s appointment of an individual or entity to take personal and (or) property-related decisions for a person the Court determines cannot make decisions for themselves. These decisions may pertain to an individual’s property, personal issues, or both.
Guardians can include family members, friends, for-profit and nonprofit professionals, and lawyers. State courts, generally specialized courts, known as probate courts, surrogates courts, or orphan’s courts, appoint guardians.
The most crucial aspect of how to fight a guardianship case is evidence. Affidavits or testimony from witnesses such as neighbors, other family members, medical professionals, police enforcement, or other interested parties may be required to support your claim in a contested guardianship. This witness could also come from the ward. Financial records and expert testimony can also be used as evidence.
Guardianships can be challenged on the grounds of neglect, abuse, fraud, violent behavior, controlled substance abuse, and other allegations of failing to act in the ward’s best interests. If the ward challenges guardianship because they are not incapacitated, medical proof must be presented by doctors in an appropriate medical specialty field.
How To Remove Someone From Guardianship
A court can terminate guardianship when guardianship is no longer required for an individual. A court, for example, can terminate guardianship if it determines that the incapacitated person can care for themselves and (or) their property. A court may also limit guardianship if the incapable person only needs assistance in some aspects of life, such as personal finances.
A court may also change the guardian at any moment for any reason. For example, if the guardian neglects their obligations or cannot execute them due to death, incapacity, or time constraints, a court may conclude that there is a valid point to change the guardian.
How Can Someone End Or Change Guardianship?
Any person may ask the Court that established the guardianship to terminate or change the guardianship or to replace the guardian with a new guardian. If the requester has a lawyer, the lawyer must file a motion in Court.
However, the person making the request does not need legal representation during this process. Instead of submitting a motion, if the individual does not have a lawyer, they may file a complaint with the Court addressed to the court administrator, the clerk, or the guardianship monitoring program.
One can find the objection to guardianship form on the Court’s website. A complainant can also write a letter instead of using this form. The written complaint must cover the following:
- The guardianship court case number (if available)
- The name and address (if available) of the individual who has a guardian
- The name and address of the individual making the complaint
- Details and facts supporting the complaint, such as:
- The name and address of the guardian
- How long has the guardianship been appointed
- Where and when was guardianship established
- Reasons for the need to change or end a guardianship
- Any instances or behavior that has changed since the guardianship was appointed
Removal Of Guardian According To Guardians And Wards Act, 1890
If you are wondering how to remove someone from guardianship, according to the Guardians and Wards Act of 1890, the Court may remove a guardian assigned or declared by the Court, or a guardian assigned by Will or other documents, for any of the following mentioned reasons, namely,
- For abusing his trust
- For continual refusal to fulfill the duties of his trust
- For the inability to carry out the duties of his trust
- For ill-treatment or neglect to properly take care of his ward
- For contumacious disobedience of any provision of Act or any order of the Court.
- For conviction of an offense implying, in the Court’s opinion, a flaw in character that renders him unable to be the guardian of his ward
- For having an interest that is adverse to the faithful fulfillment of his obligations
- For ceasing to stay within the local limits of the Court’s jurisdiction
- Bankruptcy, or insolvency in case of a property guardian
Legal Guardianship For Adults With Disabilities
A guardian must be qualified to serve to be chosen for legal guardianship for adults with disabilities. Qualifications vary by state, but in general, a guardian needs to be a legal adult (18 years of age) with no felony or any misdemeanor record, including dishonesty (forgery, bribery, etc.). Of course, the guardian must not be debilitated.
If the ward can express its wishes, the Court will decide based on those requests. If the ward cannot express their wishes, in that case, the Court will reach a decision based on pre-incapacity documents such as an adult’s nomination of a guardian, a durable power of attorney, or a will.
If no durable power of attorney is available, the courts usually appoint a spouse, parents, adult children, brothers and sisters, or other family members as guardians.
Guardians are only given the powers required to achieve what the debilitated or incapacitated individual cannot do independently. These abilities may include:
- Ensure the availability and adequate taking care of the ward
- Making financial decisions on behalf of the ward
- Making medical decisions on behalf of the ward
- Ensuring the continuity and sufficiency of educational and medical services
- Providing the Court with updates on the ward’s condition
(These court updates describe the ward’s living situation and mental and physical health status based on medical examinations and official records, along with a list of services received by the ward, mentioned services rendered by the guardian, account for the monetary assets of the ward, and any other information required to be submitted to the Court for it to assess the ward’s status and the guardian’s duties.)
What Decisions Can The Court Make During Guardianship Litigation?
Following the appointment, you have three options for filing a complaint against a guardian. If you do not believe that a guardian is an ideal person to care for an incompetent adult or dependent kid, you can submit a:
- Motion to Set Aside the Order
If the first guardian got the order through fraud, misconduct, misrepresentation, or other means, this is essentially a re-do for the Court to make a decision to appoint a different guardian. You must file within a reasonable time after the guardian (false guardianship) is appointed by the Court.
- Motion to Remove or Replace the Guardian
You may petition the Court to remove or replace the guardian if you believe they have failed to perform their obligations, mismanaged their duties as a guardian, or are inappropriate. You may make a new referral for a guardian you believe is more suited.
- Motion to End Guardianship
If a dependent child grows out of guardianship or an incompetent individual becomes capable of better decision-making, they may no longer need a guardian. An expert attorney familiar with guardianship laws can assist you in organizing your motion and filing it with the Court.
Conclusion
Guardianship for adults with mental illness is held to a high standard of fiduciary duty, and their acts, like those of any fiduciary, necessitate the highest level of ethical behavior. Any interested party may object to inappropriate behavior, and the guardian faces personal accountability if they violate the standard of care or, more specifically, engage in behavior that is not beneficial for the ward.
Nonetheless, the Courts will grant guardians broad discretion to act so long as they are not in a conflict of self-interest, and the individual challenging the guardian’s conduct must ensure that the dispute is not over a disagreement about the method of care but is genuinely about a violation of fiduciary duty. The guardian was selected because their opinion was essential to the Court or the ward. If there is disagreement, the Court will pay substantial deference to that opinion.
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