Adult contested guardianship can occur when a parent losses the ability to make decisions for her health and/or her financial well-being.
Is There a Need for a Guardian?
Having a properly executed financial power of attorney and advance directive can certainly avoid the need for guardianship in many instances. But, what happens if the financial power of attorney holder or the health care agent abuses his/her role as agent? What happens if a new financial power of attorney or advance directive is created under circumstances where the validity of the document is questionable? One possible, and most likely scenario, involves invoking court oversight by filing a petition for guardianship. The guardianship process can be complex and may not be the appropriate route for all circumstances.
Questions?
Post your contested guardianship questions here.
1. If an attorney provided legal advise to an interested party — i.e. told the interested party how to revoke and void the Financial Power of Attorney his father drew naming another child as POA—is it appropriate for a court to appoint that same attorney as guardian of property for the disabled adult? Shouldn’t the guardian of property, if not the child who was originally given financial POA, be an attorney or CPA that is a completely “disinterested” person? Someone with no ties to any of the interested parties?
2. Is it appropriate for guardian of person to allow one interested party to live in the disabled person’s residence rent free and continue to pay expenses of disabled person’s property when disabled person lives in and needs nursing home care due to dementia and other medical issues requiring nursing care? Does guardian of person have any say in manner her father’s assets are managed? Or is it 100% up to the guardian of property?
Thanks for the response to these two inquiries.
The answer to your first question requires more information. For one thing, the interesting issue is who does this attorney represent? Does the attorney represent the disabled? Does the attorney represent multiple parties? Often times an attorney is appointed as guardian of the property. This often arises in situations in contested guardianships where the Court believes that there will be ongoing issues no matter which interested party is appointed. There is a pecking order of who the Court should consider first above others in considering the appointment guardian. This applies to both guardian of the property and guardian of the person. However, frankly, my guess is that the fact situation for you is more complex and should be addressed through an initial consultation.
The answer to your second question is a favorite amongst attorneys and I am afraid I will use it here. The answer is it depends. There are many circumstances where it absolutely makes sense to have another, including an interested person, live with the disabled rent free. Of course, there are many instances where it the decision is made that a particular person should be forced to leave. The guardian of the person generally does not have any input on the assets. However, it becomes more complex, for example, if the guardian of the person authorizes an increase in care, which may mean an increase in expense, and the guardian of the property refuses to pay this increase in expense. This may involve court intervention. This is a more nuanced issue. The answers to your questions are complex and are better suited to an initial consultation.