Guardianship – physician certificates

One of the key items in a guardianship process are the certifications 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 and the parent is cooperative in the process.

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 guardianship petition and explain why the two required certificates are not present. 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 to try to guard against the sister (in my example) from getting an innocent physician with no experience with the parent to write a one page letter stating that “mom is competent.” It is important to guard and act against such tactics in order to prevent the guardianship process from inappropriately stopping. 

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.