The appointment of a guardian for an incapacitated person is one of the more serious areas of the law. There is a good reason for this. In considering the appointment of a guardian, judges recognize that the court is being asked to remove an individual’s most basic rights – namely, the right to choose what to do with his person or finances. This is one step removed from a decision to incarcerate an individual, and is treated with appropriate gravity.
Standard for Incapacity
The definition of an “incapacitated person” is remarkably straightforward. An incapacitated person means:
“an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.”
It is the interpretation of this definition and the procedural requirements of the proceedings that get very complicated. Assistance of effective counsel in these matters is crucial.
Evidence of Incapacity
In order to establish incapacity, an individual “qualified by training and experience in evaluating individuals with incapacities” must testify in person or by deposition. The evidence must address, among other things, what services would be utilized to meet essential requirements for the alleged incapacitated person’s health, what steps will be taken to manage the person’s financial resources, and what may be done to assist the individual in regaining his abilities.
Is a Less Restrictive Alternative Available?
Because the court is being asked to remove the individual’s basic rights, the court will inquire as to whether a less restrictive remedy is available that would ensure that the individual is taken care of. In this regard, the courts will often look to whether there is an individual who has been given power of attorney by the alleged incapacitated person (also known as the “attorney in fact”). If this individual is able to meet the alleged incapacitated person’s medical and financial needs, the court will be inclined to avoid the imposition of a guardianship and permit the attorney-in-fact to care for the alleged incapacitated person.
Independent Medical Evaluations
A hotly contested question that the court often addresses is whether an independent medical evaluation is to be performed. The court will order an independent medical evaluation to be performed by a disinterested medical professional. Unfortunately, it is not always that simple. Oftentimes, the alleged incapacitated person may not be willing to voluntarily submit to an independent medical evaluation.
The Rights of the Alleged Incapacitated Person
The alleged incapacitated person has rights that the court will ensure are enforced in accordance with applicable law. For example, the individual has the right to be present at all proceeding regarding the alleged charge if incapacity. The individual has the right to have an attorney involved to represent the individual. This attorney will act independently of the court and will act solely for the individual’s benefit. This attorney will be provided regardless of whether the alleged incapacitated person can afford the attorney. There are many competent attorneys who volunteer their time to provide these services free of charge. The court is aware of these attorneys and, if necessary, will appoint one of these attorneys to act on the individual’s behalf.
The court, under special circumstances, may determine that the individual who is allegedly incapacitated need not be present for the hearing. A finding that the presence of the alleged incapacitated person would adversely affect that individual’s health is required before the court permits the proceedings to continue without the individual being present.
Notice to the Incapacitated Person
Absent extraordinary circumstances, the court will require that the individual be given notice of the proceedings in advance. In this instance, the court will even require that the notice be read to the individual before the court proceeds to adjudicate capacity.
Types of Guardianships
There are four types of guardianships that the court may consider. These guardianships are dependent upon the level of incapacity. These guardianships are:
- Plenary Guardian of the Person
- Limited Guardian of the Person
- Plenary Guardian of the Estate
- Limited Guardian of the Estate
A Plenary Guardian is appointed when the individual is adjudged to be “totally incapacitated”. In this instance, the Plenary Guardian, once appointed, will make all decisions with respect to the incapacitated person.
The Limited Guardian, as the name suggests, is for situations where the person is adjudged to be “partially incapacitated”. The court’s order appointing a Limited Guardian will set forth the types of decisions that the Limited Guardian will make for the partially incapacitated person.
A Guardian of the Person is different than a Guardian of the Estate. A Guardian of the Person is appointed to have the powers that may include general care of the individual, determining where the individual is going to live, assuring that the individual receives the appropriate medical attention and making informed medical decisions and other areas that do not directly relate to the individual’s finances. For example, a Guardian of the Person will oftentimes have the power to make all medical decisions for the individual.
Conversely, a Guardian of the Estate is an individual who will make decisions with respect to the incapacitated person’s assets, income and estate. The Guardian of the Person is often the same individual as the Guardian of the Estate.
The above are just a few of the issues raised with respect to the appointment of a guardian for an incapacitated individual. For good reason, the procedures that must be followed before a guardian is appointed are precise. It is best to have these issues vetted with an attorney familiar with this complicated area of the law.
Robert A. Burke is an active trial attorney who has tried cases to verdict in six different jurisdictions. His practice is focused on complex commercial and estate and trust litigation. This includes trial and appellate work in federal, state and international courts. He regularly presents matters before alternative dispute resolution panels and frequently lectures on trial tactics, practice and procedure. He can be reached at 610-840-0211 or r[email protected]