This is the first installment of a two-part series on the Conservatorship/Guardianship process. My blog on December 19th pointed out how flawed the system is whereas this and tomorrow's blog will provide you with vital information on how to go about avoiding and perhaps even defending yourself if this event were to come your way.
“Clear and convincing evidence” is a higher burden of proof than the standard “preponderance of the evidence” burden of proof in most civil cases.” If you are concerned about the well-being of an aging loved one, you may be considering the possibility of filing for a guardianship. (In Virginia, this role is filled by two positions; a court-appointed conservator who will determine how to spend your money in your best interest when you no longer can do so for yourself and a court-appointed guardian who makes healthcare decisions on your behalf. For the purposes of this blog we will use the word 'guardian' to mean both roles). You do not want to lose in court and have the elder angry at you for the rest of his life. To grant a guardianship, the court must find that there is “clear and convincing evidence” that the senior is unable to care for himself and that he is likely to suffer harm as a result. However, what constitutes “clear and convincing evidence” for purposes of guardianship?
When you file a petition for guardianship, you are the “petitioner” and the person for whom you are trying to get a guardianship is the “alleged incapacitated person” (AIP). If the court grants the guardianship, the AIP becomes a “ward.”
Complete Incapacity is Not Required
Your loved one does not have to be unable to do anything, in order to be incapacitated. For example, an elder might maintain good personal hygiene, cook nutritious meals for herself and keep her house neat as a pin, but forget to pay the bills or take care of other financial matters due to mild but progressing Alzheimer’s. She may need a guardian to take care of her financial matters, so she does not lose her home, have her utilities shut off or get sued for non-payment of bills.
Evidence the Court Considers in a Guardianship
In some states, the judge will appoint an independent evaluator to interview the AIP and assess his ability to take care of himself. Social workers, psychologists, health care workers and people from other professions can serve as independent evaluators. The evaluator will review the records of the AIP that are relevant to the allegations of incapacity, such as medical or financial records, and then either submit a written report with recommendations or testify at a hearing. If the AIP contests the guardianship but does not have a lawyer, the judge might appoint a lawyer for him.
The petitioner must present to the court clear and convincing evidence that the AIP is incapacitated and likely to suffer harm as a result – in other words, it is more likely than not that eventually she will suffer physical, financial, or some other type of harm from her inability to take care of herself. “Clear and convincing evidence” is a higher burden of proof than the standard “preponderance of the evidence” burden of proof in most civil cases. The preponderance of the evidence means that one side offered more credible evidence than the other side.
If the petitioner presents clear and convincing evidence and the AIP still contests the guardianship, the AIP must present evidence to the court that sufficiently counters the petitioner’s evidence. The AIP can submit testimony, documents, and other evidence to prove her case.
The AIP Can Consent to the Guardianship
Not all guardianships are contested. An AIP may have already had some close calls and may be afraid that something even worse will happen if there is no one looking out for him. If the petitioner presents clear and convincing evidence and the AIP consents to the guardianship, the odds are great that the court will grant the petition for guardianship. The court will make the powers of the guardian as limited as it can, to preserve as much of the AIP’s independence as appropriate.
You should talk with a local elder law attorney because the laws are different in every state. This posting discusses the general law. We are here to help you with this process by either calling us at 757.259.0707 or 'requesting a consultation' online.
Association of the Bar of the City of New York. “Guardianship.” (accessed November 29, 2017) http://www.nycbar.org/get-legal-help/article/wills-trusts-and-elder-law/guardianship-proceedings/
Justia. “Guardianship of Jenna G. (1998)” (accessed November 29, 2017) https://law.justia.com/cases/california/court-of-appeal/4th/63/387.html