• Rebecca V

Guardianship Litigation: Is it possible to prevent hard feelings? (Not always.)

Updated: Feb 11, 2019

Many times partially incapacitated family members who are the subject of a guardianship feel that they have been sued by their loved ones, and it is not always possible to avoid the family discord that results.

Oftentimes a person who is the subject of a guardianship, unless they are already totally incapacitated, feels as if they are being sued because of the guardianship proceeding being commenced. Unfortunately, sometimes a guardianship filing can change the family dynamic forever. Here are some considerations before you file for guardianship for a loved one.

Practical Concerns

“I can't believe my relative is suing me.”

I have spoken with many clients who have the concern, once they understand that their loved one will be fully made aware of the guardianship proceeding, that their relative will react with anger at the proceeding being commenced in light of the fact that they are not totally incapacitated and are able to communicate and process information. Many clients are concerned that if they file for guardianship, their loved one will never forgive them and their relationship will be forever changed. This is an appropriate concern, and one that should be considered in every case. Even if the loved one's anger is due to their cognitive impairment, dementia, or mental illness, the anger is a real concern nonetheless.

Common Reasons You May Need to File

There are a couple common reasons why a client may choose to proceed with a guardianship filing, regardless of the potential family discord that may result.

The first is a safety concern for their loved one. Some common examples of safety concerns would be a family member who is unsafe to drive or travel but continues to insist upon doing unsafe activities, a person who has a mental illness and is refusing treatment and is endangering themselves or others, a family member who wanders away from their home or facility due to illness or cognitive decline and needs different residential setting for their own safety but refuses to voluntarily move.

The second reason a client may proceed with filing a guardianship despite the discord that may result is when there is a concern that a third party is unduly influencing their loved one, which may be causing concerns relating to the person's physical safety or financial exploitation.

Not Always a Perfect Answer

“I am concerned about waiting to file, but I am more concerned about having my loved one never talk to me again.”

I have had multiple clients decide to hold off on a guardianship filing, with the thought that their loved one will likely decline further cognitively and with the hope that that will allow family harmony to continue despite the guardianship filing. Every case is different because of the personalities, families, and medical issues at play.

Any guardianship attorney should review the practical ramifications of a guardianship filing with their clients because the non-legal practical issues many times may override the client's desire to proceed with a meritorious guardianship filing. Ultimately the client has to balance the factors and make the ultimate decision, but any guardianship attorney should review the legal process with their clients thoroughly so that there are no surprises about how the process works and how the filing can impact family harmony.

Learn Your Options

To make the best choice about whether and when to file a guardianship case, clients can use legal counsel to make an informed decision based on the facts at hand and all the legal options. In some cases, there may be ways to work through the pending issues without litigation and an experienced guardianship attorney can review all the available options.

50 views0 comments