Contested Guardianship or Conservatorship Petition
In my opinion, the family fights over control and access to a mentally incapacitated adult can be just as vicious an emotionally taxing for litigants as a divorce case. Often times, these cases begin when siblings disagree over how one person is handling mom or dad’s assets or care.
Although it isn’t always the main motive, concerns over money and inheritance sometimes arise. As an example, one sibling might be concerned that brother or sister is “wasting” mom’s money (their possible inheritance); this may or may not be so. A family member might get upset and feel that they have a right to demand access to financial statements or medical records.
Ground for Contesting a Guardianship or Conservatorship
Here are some of the more commonly used grounds by which a guardianship or conservatorship is contested in Virginia:
- The Respondent is not truly incapacitated;
- Remember, you must show more than a history of poor decision making.
- The recommendation of a treating physician is crucial.
- There is a “less restrictive alternative.
- Remember, a guardianship appointment means that the court is taking away the rights of the Respondent. Courts do not and should not take this lightly.
- Should the powers of the guardian or conservator be limited in scope?
- Is there an existing Power of Attorney or Medical Directive (appointment of a medical agent) in place?
- Any petition for guardianship/conservatorship must address this issue.
- Is the person seeking guardianship or conservatorship fit to serve as a fiduciary?
- Do they have criminal convictions? Bankruptcies? Are they capable?
- Sometimes it is necessary to appoint a third party who is not related to the Respondent.
*This list is by no means exhaustive. Speak with your attorney about your specific facts.
Do you anticipate that the petition will be contested?
With someone first comes into my office for a consultation regarding guardianship or conservatorship of an incapacitated adult, one of the first questions I ask them is whether they anticipate the respondent (person who is allegedly incapacitated) or another family member will contest the proceeding. It’s important for potential clients to talk to their attorney about this from the outset. There are other instances where a family member comes out of woodwork and is suddenly worried about mom or dad’s care after the petition for guardianship has been filed.
My intention is not to scare you off from seeking legal recourse regarding the care and oversight of a loved one with diminished mental capacity. If you are concerned about neglect or abuse, you should certainly speak with an attorney.
Ryan C. Young | Richmond, Virginia Attorney | Guardianship & Conservatorship of Incapacitated Adults
