In Special Needs News

Woman smiling and pushing young man using wheelchair in library.When a person petitions the court for guardianship over an adult, the adult typically benefits from having independent legal counsel. Yet not all states require independent counsel for the proposed protected person.

If you or your loved one are facing a guardianship or conservatorship case in court, consider contacting an attorney for assistance.

How an Attorney Can Help

Attorneys with experience in guardianship matters can advocate for proposed protected people in several ways. Guardianship attorneys can support the self-determination of potential wards and help them express and negotiate their wishes and understand their options. They can explain the rights that the guardianship would take away, as well as the possible benefits of the arrangement, such as assistance with decision-making.

Unfortunately, some courts assume incorrectly that proposed protected people always benefit from guardianship and that the petitioner has the proposed ward’s best interests in mind. Attorneys who understand the conventions of the judicial process can help their clients make a favorable impression on the court and mitigate the adverse effects of the court’s biases.

If a suggested ward objects to guardianship, an attorney can advocate for the individual by recommending a less restrictive option.

For instance, a proposed protected person might only need help with finances, but not daily living and health care. In that case, the legal counselor could argue that only guardianship of the estate, not total or plenary guardianship, is appropriate.

Many proposed protected persons have diminished capacity in some areas, but not others. For those individuals, alternatives to guardianship that provide greater freedom are available, such as limited guardianship and supported decision-making.

Even when the proposed protected person approves of guardianship, the individual often has preferences about who the guardian should be. A legal counselor can request that the court appoint a person who respects the agency of the proposed ward.

Suppose a woman has two daughters. She has a positive relationship with one daughter and a combative relationship with the other. When both daughters petition for guardianship, the woman does not object to the guardianship, but would prefer the daughter she gets along with to act as her sole guardian. In that case, the woman’s attorney can recommend to the court the daughter whom the woman likes.

Court-Appointed Counsel

Since guardianship proceedings happen in civil court, not criminal court, there is no general right to representation. While guardianship can protect individuals with decision-making challenges, guardianship can severely restrict the ward’s freedoms.

Some jurisdictions, recognizing the significant consequences of guardianship orders, have begun to require that the proposed protected person have legal counsel. A new Oregon law directs the court to appoint counsel to the proposed protected person. Unlike public defenders, these are privately practicing professionals with guardianship law experience.

Securing Independent Counsel

Consider hiring an attorney if your jurisdiction does not provide potential wards with legal assistance. Even if you do not wish to contest the guardianship, you may have specific wishes about who your guardian should be and the scope of the arrangement. With the help of an attorney, you can make sure that the court hears your voice. The negotiation skills of an attorney can assist you in securing a favorable outcome.

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