Opposing a guardianship deemed unnecessary
Laura and her sister, Karen, have received notice that their brother, Carl, has filed an application to declare their 78-year-old mother, Louise, incompetent and have himself appointed as her guardian. Laura and Karen are convinced Carl knows their mother is not impaired and merely wants control of their mother’s substantial assets. What can they do to block Carl’s efforts?
Laura and Karen can convince their mother to prepare and sign financial and medical powers of attorney naming one or both of them as her agents. They can encourage Louise to prepare a document which would name the person she would want to be her guardian, if the time came that she needed one. This document could also list persons that she would not want to be named as her guardian. If Louise states that she does not want Carl named as her guardian, the court is bound by law not to appoint him as guardian.
In any case in which guardianship of a person and/or their estate is sought, the court is required to appoint an attorney ad litem, who is charged with representing the person over whom the guardianship is sought. Laura and Karen can work with this ad litem to make certain the ad litem gets the evidence necessary to show that Louise is competent and that Carl, should, in no case, be appointed their mother’s guardian.
The sisters believe their mother’s treating physician will verify their mother’s state of mind. They can give the ad litem the physician’s contact information and urge that the doctor be consulted. They can describe their mother’s actions and their interactions with her that demonstrate her competence and offer to testify accordingly.
Laura and Karen are aware of instances in which their brother has taken advantage of their mother. They have copies of banking and investment records that indicate this. They can provide the ad litem with these copies. They can tell the ad litem any additional information they have to support their position. They can agree to testify at the hearing on guardianship as to the things they have witnessed that show Carl’s exhibiting lack of good faith and undue influence in dealings with their mother.
Laura and Karen can hire their own attorney to file a challenge to the guardianship. They could assert that their mother does not need the protection of guardianship. They can seek less restrictive measures, such as issuance of financial and medical powers of attorney, if needed. Should the court decide a guardian is needed, they can assert, in the alternative, that their brother should not be appointed. To support this claim, they can provide evidence of their brother’s misdeeds.
Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.