The Emotional Impact of the Guardianship Process

Sad-674811_640There are very few times in my career that I can remember being in tears and having a difficult time separating myself from the situation and being "the lawyer". 

Most of those situations occurred in a guardianship hearing where I was representing a family member who was trying to get guardianship over another family member simply because they did not have the proper paperwork in place. It is not my intent her to go into the legal/technical aspects of a financial power of attorney or guardianship, but more to focus on the emotional toll that the guardianship process takes on families. 

A guardianship is a court process where a judge appoints another person to be the guardian for an individual and essentially takes away from the person, who is referred to as the alleged incapacitated person, their right to make either medical or financial decisions, or both, for themselves once the court determines that they are incapacitated. 

Although this may seem pretty simplistic and straightforward, the inner workings are a little more emotionally complicated.

To start, the family member must file a petition with the court alleging that a family member lacks capacity and that they are a detriment to themselves or to society, and that it is essential for another person to be appointed to make their day-to-day medical and/or financial decisions. Once that is filed in the court, the judge will issue a citation, which then has to be read out loud to the alleged incapacitated person by somebody who is not the person bringing the petition reading, regardless of whether alleged incapacitated person can understand it or not. The person who read it must then sign an affidavit indicating that they did read it to the individual.  

The citation also provides that the alleged incapacitated person is entitled to an attorney, and that if they cannot afford one, an attorney will be appointed for them. A hearing is then held, and in most cases, the alleged incapacitated person has to be present in the courtroom for the hearing.

At the hearing, and often in front of their loved one, the people bringing the petition must testify about why the alleged incapacitated person is unable to care for themselves. The hearing can be very difficult for both the family and alleged incapacitated person, especially, as often happens, when the alleged incapacitated person clearly does not have capacity, but knows that they don't like being in the courtroom and didn't like what is going on and what is being said about them. 

I vividly remember one spouse repeatedly saying to her husband, "We were married for 45 years and this is the thank you I get?"  It was heartbreaking for everyone in the courtroom. 

Guardianships, while often necessary, and certainly a good part of our process, are an emotional burden on those involved, and often can be avoided if proper planning is done.  Please come have a conversation with us about any questions or concerns you may have around Guardianship.  Knowledge is power.  And we want to help.  It really is easier with planning in place.  You can either fill our our simple form here.

Or give us a call (717)845-5390.



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