What Happens If Someone Does Not Want A Guardian?
Guardianship litigation can arise when the incapacitated person objects to the guardianship. They may object on a couple of grounds – either that they do not need a guardian, or that they have already put plans in place to avoid the need for a guardian. If successful in proving these issues, the court may not appoint a guardian.
As you might imagine, many people who are developing Alzheimer’s or dementia may not fully appreciate the impact that their disease is having on their lives. In many of those cases, the person may disagree that they need a guardian. When they do, they have the option to contest the guardianship based on the fact that they do not need a guardian. In those cases, the alleged incapacitated person must prove through medical evidence of a doctor that they do not need a guardian. The trial of the guardianship would be a contested matter that involved guardianship litigation.
Another instance when an incapacitated person may allege that they do not need a guardian arises when the person has made other plans to avoid the need for a guardian. For instance, they may have designated someone under a power of attorney to make decisions for them, or they may have created a trust to manage their assets instead of needing a guardian. These “alternative supports and services” can preclude the need for a guardian, even though someone petitions the court to appoint a guardian. The attorneys claiming that the alternative supports and services are effective to prevent needing a guardianship must prove how good the alternatives are and show that they are effective to protect the incapacitated person.