Guardianship

Physician Certificates

One of the key items in a guardianship process are the certifications.   Certificates are needed to prove to the court that a person lacks the ability to make rational decisions regarding her health or finances.  In many cases it may be possible to work with a parent to have them examined by two physicians.   In that instance a parent may be cooperative in this process.  What happens, however, if a parent is not cooperative?

Problems Getting Guardianship Certificates

But, what happens if the parent is not cooperative? Or, to make it a little more complex, what if your sibling is keeping your parent at their house and refuses to make them available for an examination? Then, your next step is to file a petition.  In that petition you must explain why the two required certificates are not present.  Usually, at this point, you need to tell the court why it is necessary for the parent to be examined.   This should include concrete examples that demonstrate why the court should be involved.  The court’s next step would be to set a hearing for both the parent and the sibling (in my example) to show cause (in person) at the court why the parent should or should not be examined.

This is a tricky process that should be guided by an elder law attorney.  Of particular importance is timing.   A parent may be immediately at risk for exploitation or may injure themself.  There are different standards for getting the court involved.    It is important to articulate to the court attempts made to intervene.

That is why it is critical that why an elder law attorney should be immediately contacted (hopefully before the litigation starts). It is our job to walk the client through the guardianship process and if contested, to walk them through the contested process and what to expect.