Caring for a loved one who may have a disability is a duty which requires your full attention. Whether the disabled person has a mental or physical illness, the individual in charge of their care must always work in the disabled person’s best interests. Contested guardianships often occur when a family member believes the person in charge of a disabled person’s well-being is unfit to be a guardian. If you believe a guardian does not have your family member’s best interests in mind, you should consult with an experienced attorney.
At Herr Potts and Potts, our attorneys have years of experience handling guardianship disputes. We understand the fears of having a loved one being mistreated and will work with you to protect your family from unfit caretakers. To speak with a southeast Pennsylvania guardianship attorney, call (610) 254-0114 to schedule your confidential consultation.
What is a Guardianship?
A guardianship is when a caretaker is appointed to an individual who suffers from a mental or physical illness, such as dementia, Alzheimer’s or other progressive mental, physical, or emotional illnesses. A guardian can oversee the medical or financial care of the disabled person, sometimes the guardian oversees both.
To be appointed a guardian, a person must be so impaired that they are partially or totally unable to manage their financial resources or meet necessary requirements for physical health and safety. This means an individual must be unable to make sound decisions regarding their finances or cannot even manage basic day-to-day physical activities.
For an individual to be deemed disabled or incapacitated, the disabled person must attend a hearing in Pennsylvania’s Orphan Court. Testimony is then offered to establish the incapacity of the individual. This testimony must be offered by qualified professionals like psychiatrists and other health care providers. If the testimony is accepted, an individual will be judged as incapacitated and be appointed a guardian.
These are the categories of people or organizations which can be appointed as a guardian:
- Any qualified individual;
- Corporate fiduciary;
- Nonprofit corporation;
- Guardianship support agency;
- County agency.
How to Contest a Guardianship
Generally, contested guardianship issues tend to arise within a family. The primary reasons a guardianship is contested is because of problems concerning the safety, living arrangements, and management of financial resources of the incapacitated party.
When contesting a guardianship, an alleged incapacitated individual can:
- Hire an attorney or request an attorney.
- Be present at all hearings
- Ask for an independent evaluation of your alleged incapacities
- Present and cross-examine witnesses
- Request a private trial
- Request a jury
- Appeal the court’s ruling
Contested guardianship cases usually have unique facts which must be considered on a case-by-case basis. If you wish to contest a guardianship you should alert the court of your objection to the guardianship.
There must be clear and convincing evidence to establish an individual as incapacitated. Meaning the person who initiates a guardianship petition has a very high standard to meet to get a person judged as incapacitated. At this point, a family member or the alleged incapacitated person themselves may present evidence and witnesses to argue against their incapacity.
A guardianship can sometimes be used to control a person’s life, as a guardian has the power to:
- Buy and sell assets of the incapacitated person
- Operate a business owned by the incapacitated person
- Admit the incapacitated person to a nursing home
- Consent to medical treatments for the incapacitated person
A guardian who does not have the best interests of the incapacitated person in mind has wide discretion to abuse their powers.
Alternatives to Guardianship
If a family has serious disputes concerning the care of a family member, mediation is a viable option. Mediation is a form of alternative dispute resolution. There are various kinds of alternative dispute resolutions, like:
- Evaluative mediation – Parties present their factual and legal arguments and a neutral party assists both parties find an acceptable middle ground.
- Therapeutic mediation – Focuses on problem-solving abilities of the parties. Both parties present ways to handle similar problems in the future and a mediator approves these methods.
- Some forms of mediation employ a mixture of both above-mentioned methods.
Mediation presents a variety of advantages, such as:
- Parties in the dispute are responsible for the resolution of their dispute, instead of a court.
- Mediation is normally cheaper and quicker than enduring a trial.
- Mediations are confidential.
- Mediations tend to be less stressful as they occur outside of courtroom settings.
- Remedies can be uniquely tailored to meet everyone’s needs.
This is not a comprehensive guide about how to contest a guardianship in Pennsylvania, if you are considering contesting a guardianship you should speak with an experienced attorney.
Our Pennsylvania Guardianship Lawyers Can Help
If you believe that a family member is being taken advantage of by their guardian, you should speak with a lawyer immediately. At Herr Potts and Potts, we are dedicated to ensuring that the best interests of our clients are always at the forefront. Our southeast Pennsylvania guardianship lawyers have extensive experience in guardianship law and would be proud to serve you. To schedule a confidential consultation, call us at (610) 254-0114