A lawyer’s job can often be defined as “we help people fix problems that they tried to solve themselves and couldn’t.” Folks come into our offices and tell us what’s going on and then we explain to them how we can help. It breaks my heart when I have to say, “I’m sorry, but I can’t help you.” More than any other time – and exponentially so – I have to say it when people come into the office to try to get guardianship over a loved one.
Guardianship is a very important, serious process in the courts. If an adult’s health or ability to take care of themselves is in immediate and significant danger, a court can rule that they shouldn’t be allowed to make decisions for themselves anymore. To start the process, someone has to apply with the court and explain why the guardianship needs to happen and who the guardian should be. Then the court is required to appoint a 3rd party neutral attorney (called an attorney ad litem) to investigate the situation. There has to be a hearing to prove that the proposed ward is truly incapacitated and not just behaving in a way that is socially unacceptable. If that very high bar is cleared and the court determines that an adult’s rights should be taken away, that adult is essentially returned to having the legal rights of a child where someone else makes medical decisions for them and they’re not able to contract or handle financial matters themselves. Then the court has to decide if the person applying to be guardian should be allowed to have full control over the disabled adult.
For better or worse, it is very, very, very difficult to get guardianship over someone. On one hand, it’s a very difficult conversation with people who are worried about a loved one who has mental health issues or substance use disorder. People hope that they can get the court’s help to try to steer someone else back onto a more acceptable path. People want to save others from living in their car or experimenting with mind-altering substances or joining a cult. However, an adult that chooses to live in a way that isn’t acceptable to your or even their own previous standards isn’t grounds for taking an adult’s rights away. So while the guardianship process seems too difficult when you’re trying to help someone, it’s good to know that the court is there to protect you if someone you know decides they know what’s best for you better than you do.
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