Understanding how to prevent an unwanted guardianship

Let's suppose one of your children or another family member is trying to obtain guardianship over you. What can you and other family members close to you do to prevent the imposition of a guardianship?

First, to obtain a guardianship over you, the party seeking guardianship must show by clear and convincing evidence you are so mentally impaired you are incapable of taking care of yourself or your property. The person seeking guardianship must obtain an evaluation of you by a doctor who has examined you, which must state you are mentally impaired, the reason for the impairment, and that in the doctor's judgment, you are incapable of taking care of your finances and/or yourself.

If that person has obtained such an evaluation, you have the right to ask the court for what is known as an independent medical exam, meaning you can ask another physician examine you for purposes of disputing the other evaluation. If you are indigent and cannot afford such an examination, the court will pay for the evaluation. If your examination indicates you are competent, then it will be hard for the person seeking guardianship to show there is clear and convincing evidence you are incompetent.

Second, if you have an existing power of attorney, you can argue it is a less restrictive alternative to a guardianship. As long as you have a durable power of attorney, which means it survives your alleged incompetence, and a health care power of attorney, you would argue a guardianship is unnecessary because your agent can handle all medical and financial matters that may arise. Also, the person serving as your existing power of attorney could file an application for guardianship to ensure the person you wish to be your guardian would at least be considered for the role if the court finds you incompetent.

Third, make sure your durable power of attorney contains a statement about who you want to be your guardian in case you are ever found incompetent. Make sure your document is witnessed by two independent individuals and notarized to ensure the court gives it proper weight and consideration. Also, the court can always find the person you nominate unsuitable, so make sure to determine if that individual has any criminal or other legal history that could render him/her unfit for a fiduciary position.

Finally, if the reason for the guardianship is concern from family about the way the current power of attorney is managing your finances, have that person prepare an accounting and send it to all concerned parties, with your permission, so that any trust issues may be dispelled.

In summary there are times when a guardianship may be needed, but it is a costly procedure in terms of financial matters and an individual's self-esteem and feelings about continued independence.

Monica L. Miyashita is an attorney-at-law and can be emailed at kensingtonlawyer@gmail.com. Be advised the information contained herein is not a substitute for individual legal advice.