
This is the second of a three-part series.
At the heart of every guardianship proceeding is the person in need of protection: the proposed ward. In a just world, everyone involved in guardianship would be working for the ward’s best interests.
The world is not just.
Too often, guardianship is brought or opposed for a personal motive completely divorced from the ward’s best interests. What type of motive? Usually greed, power, convenience, or revenge. Family members are pitted against each other. Business partners fight for a competitive edge. Creditors, like nursing homes, try to make a money grab.
Their goal? Have the ward declared legally incapacitated, take away the ward’s right to make decisions, and give those rights to a guardian.
Advocates for the Ward
Attorney Ad Litem (AAL)
Fortunately, the ward does not have to fight alone. The court where the guardianship is filed is required to appoint an Attorney Ad Litem (AAL). The AAL serves as the ward’s attorney and defends against the guardianship.
An Investigator
The court may also appoint an investigator who reports his or her findings on the need for guardianship. (A statutory probate court is required to appoint an investigator).
Guardian Ad Litem (GAL)
The court may also appoint a Guardian Ad Litem (GAL) to represent the best interests of the ward. This is a different role than the AAL, who is required to advocate for the ward. In contrast, the GAL may take actions or make recommendations against the ward’s express wishes.
The GAL and AAL are usually given the right to access the ward’s medical, psychological, and financial records.
Person vs. Estate Guardianships
There are two types of guardianships: person and estate. Typically, a guardian of the person makes decisions regarding residence, medical treatment, and access to the ward, and can manage up to $20,000 of the ward’s funds. The guardian of the estate takes control of and manages the ward’s finances.
The powers of the guardians are determined by written court order. If a right is given to a guardian, then the same right will be removed from the ward.
There are many areas in which guardianship can be contested, such as incapacity of a ward, necessity of the guardianship, ward’s rights to be removed, powers to be given to the guardian, and choice of the guardian.
Contested Guardianship Strategies
Over the years, several strategies have emerged that are fairly common in contested guardianship proceedings.
Temporary Guardianship
This is used when the ward is at risk of immediate harm and cannot wait until a full guardianship proceeding is finalized. The application must be heard within 10 days of filing.
Temporary Restraining Order
This is an ex parte (without notice to the other side) order where the court restrains someone from taking adverse action against the ward. The order is good for only 14 days. It is normally followed up with a temporary injunction action requesting longer relief.
Motion in Limine
This is a motion requesting the court find that a party has an adverse interest in the ward. If granted, that party cannot pursue or contest the guardianship application.
Management Trust
This type of trust is used to hold and manage a Ward’s estate. It’s created by the court and considered a least-restrictive alternative to establishing a guardianship of the estate for the ward.
Rule 12 Motion
This is filed when there is a question regarding an attorney’s authority to represent a party. It is normally used when a private attorney appears in a case and purports to represent the proposed ward.
Hammerle Finley is Here to Help With Adult Guardianship
A contested guardianship can be expensive and messy for the parties, but who always pays the highest price? The ward.
If you or a loved one have questions about guardianship, schedule a consultation with our team of expert attorneys today.
And don’t forget to read the other two parts of this guardianship series:
- Part 1 discusses simple guardianship
- Part 3 will discuss guardianship for a disabled (special-needs) child who is turning 18
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.