Another key element of probate litigation involves guardianship disputes, which arise when a person can no longer make decisions regarding his or her estate. Here we have provided some information which you may find helpful on this issue. For more information, please click here (link) to see our FAQs page.
Guardianships
A guardianship is a procedure supervised by the probate court where the court gives one person (the “guardian”) the legal authority to make personal or financial decisions for a person (the “ward”) who can no longer make such decisions for himself or herself.
Common situations in which guardianships are used include older persons suffering from severe dementia or other mental illness that precludes them from managing their own affairs, persons who suffer from mental disabilities or cognitive deficits, and minors who own assets in need of adult management.
Physician Testimony
Before a guardianship can be established for an adult, a physician’s evaluation documenting the need for the guardianship must be filed with the court. The physician’s evaluation must cover certain topics, and it must be dated within 120 days of the guardianship application being filed. Two of the topics that must be specifically addressed by the physician are the ward’s ability to drive a vehicle and to vote. Probate Code § 687.
Attorney Representation
The appointment of an attorney to represent the proposed ward is mandatory in guardianship proceedings. This attorney, called the attorney ad litem, is appointed to represent and advocate on behalf of the proposed ward. Probate Code § 646.
Guardian ad Litem
In addition to the attorney ad litem, some guardianship cases also involve the appointment of a guardian ad litem. The guardian ad litem differs from the attorney ad litem in several respects: 1) guardian ad litems are not appointed in all cases, only some cases; 2) the guardian ad litem is not always an attorney; 3) the guardian ad litem is appointed to represent the best interests of the ward (which may be different from the desires of the ward - the attorney ad litem is to advocate the desires of the ward, even if those desires may not necessarily be in the ward’s best interest). Probate Code § 601 (12).
Guardianship Expenses
Guardianships can be expensive, and many of the expenses are charged to the estate of the ward. The expenses include payment of the fees for the attorney ad litem (Probate Code § 755), the guardian ad litem (Probate Code § 645), and other fees needed for the overall management and operation of the ward’s estate. If the attorney’s fees for the attorney ad litem and the guardian ad litem cannot be paid from the ward’s estate, they become the county’s responsibility. Probate Code § 665A.
Alternatives to Guardianship
Guardianships can take away significant legal rights and privileges of the ward. As a result, the legislature has mandated that, if there are less restrictive alternatives to a guardianship available, they are to be used. Probate Code § 602. A commonly used alternative to guardianship is a power of attorney over the proposed ward.
Venue
Venue for a guardianship is in the county in which the proposed ward resides. Probate Code § 610.
Jurisdiction
Guardianship jurisdiction is similar to the will contest jurisdiction discussed earlier. If there is a statutory probate court in the county, jurisdiction is in the statutory probate court. If there is not a statutory probate court, jurisdiction is in the county court, with disputed issues transferred to the district court. Probate Code § 606.
Notice
There is no such thing as a “stealth” guardianship. In all guardianships, the proposed ward must be served with notice so that the ward can come forward and oppose the guardianship if the ward desires.
Required Findings
In order to establish a guardianship over an adult, the court must find that the person is an “individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.” Probate Code § 601 (14) (B).
