Guardianships
Guardians are appointed for minors and incapacitated adults. A minor may need a guardian appointed if the minor’s parents are deceased or otherwise unable to care for the child. Adults may become incapacitated due to mental illness, brain damage, physical problems, dementia, or a host of other causes. In such cases, a court must be asked to appoint a guardian to be responsible for the person and property of a minor. In the case of an adult, the court must be asked to declare the adult to be incapacitated and to appoint a guardian of the person, the property, or of both.
It can sometimes be a difficult and emotional process to make the decision to have an adult declared incapacitated. Many times the adult does not recognize that he or she is incapacitated and needs help and will resist and resent the efforts to help them. Sometimes a guardian is not necessary at all (e.g., where the adult has a power of attorney and is at least somewhat cooperative) and you just need someone to advise and counsel you as to your legal options and strategies. Unscrupulous family members, friends, or neighbors may interfere in a guardianship or seek to be appointed as the guardian because they have become dependent on the ward’s assets. We recognize these difficulties and are prepared to advise and assist you.
Campione & Hackney has experience representing individuals in both contested and uncontested guardianships. A contested guardianship can be like any other litigation and Campione & Hackney can bring both its litigation and its guardianship experience to bear in contested cases. Contested matters may also arise after a guardian is appointed in cases involving the petition for removal of a guardian, demands for accounting, or breach of a guardian’s fiduciary duty to the ward. Sometimes litigation is filed on behalf of the ward to recover property or to set aside estate plans procured through undue influence.
Establishing a Guardianship
Any adult can file a petition for the appointment of a guardian for any other adult believed to be incompetent. Guardianships may involve minors who have been orphaned or who will receive a payment from an estate, insurance claim, or lawsuit. They may involve younger adults who are incapacitated due to mental illness, drugs, alcohol, or brain damage. Older adults subject to guardianships may have dementia, paranoia, delusions, and short-term memory loss or they may be physically incapacitated due to advanced age. A competent person may ask for a voluntary guardian; e.g., if they are mentally competent, but physically unable to handle their own affairs. A guardian may be appointed for the person, for the property, or for the person and property.
Guardianships are complicated affairs requiring the filing of petitions, affidavits, and reports. A three person examining committee must be appointed. There are many tight deadlines in guardianship cases. If the alleged incapacitated person or her family contests the finding of incapacity or the appointment of a particular guardian, then the proceedings are little different from any other litigation. That is, they require a lawyer skilled in examining witnesses, presenting evidence, and making objections.
The attorneys at Campione & Hackney have years of experience in the area of guardianship and litigation. We can help you whether you are petitioning to have a guardian appointed, are a concerned family member of a person subject to guardianship proceedings, or are yourself the subject of a guardianship proceeding against you.
