October 01, 2020

Defending Older Adults Against Guardianship Petitions

The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 42, Issue 1.)

An adult guardianship order, and the resulting deprivation of rights, can be devastating for people who’ve lived a long and successful life. An adult guardianship order can remove or limit the autonomy of an adult and appoint another individual to make some or all decisions on behalf of the adult. The role of counsel is to defend against the petition for guardianship and protect the client’s autonomy. This may include defeating the petition and preventing the appointment of a guardian, offering a different nominee to serve as guardian or limiting the role of a guardian. Regardless of the intended response, effective representation of an individual alleged to be incapacitated requires skill, knowledge and expertise in guardianship proceedings.

Attorneys who represent clients in an adult guardianship action have an ethical obligation to maintain a normal attorney-client relationship to the extent possible.  [See Model Rules of Professional Conduct, Rule 1.14]. This can be contrasted with an attorney appointed by a court in an ad litem role and charged with acting in the “best interests” of the individual, in which case the attorney acting as guardian ad litem may exercise his or her own judgment about the need for guardianship. However, if the attorney’s role is as counsel, his or her task is to protect the client’s autonomy and provide a defense to the petition.

An attorney has an ethical obligation under Model Rule 1.4 to communicate during the course of representation with a client and an ethical obligation under Model Rule 1.2 to consult with the client about the objectives of representation and to abide by the client’s decisions. It may be necessary to adjust the manner of communication with a client who is experiencing some cognitive challenges.  It may be necessary to have longer or more frequent meetings, adding to the time necessary to properly inform and advise a client and to receive reliable responses that demonstrate  the client understands what has been discussed and is communicating his or her decision(s) regarding course of action for the attorney to take in litigation. It is important to spend the time necessary to make certain that the client, and not the attorney, is directing the course of action.

Working with a client who is the subject of an adult guardianship petition can require making adjustments to counsel’s customary manner of communication. The client may have observed challenges in managing their personal affairs which were the reason for the petition. However, proving that an individual’s deficits are severe enough that the individual cannot make their own decisions is more than simply providing evidence of a diagnosis of mild cognitive impairment or of a medical condition which may contribute to a reduction in cognitive ability. If the client does have an impairment, this can make meaningful and effective communication with the client challenging.

 An attorney may need to take into account the environment in which meetings are held.  When a client is a resident of a long-term care facility, and it is necessary to hold client meetings at the facility, the attorney may wish to request the facility make a conference room available to provide privacy. At a minimum, the attorney should make certain that the attorney-client conference is not unnecessarily interrupted and that measures have been taken to prevent other individuals from listening in to the conversation.

When defending against a guardian petition, an attorney should focus first on protection of due process rights. Has the petitioner complied with all the state statutory requirements, including proper notice? Has the petitioner provided evidence that is sufficient to prove the need for appointment of a guardian? As more states move to a functional definition of incapacity instead of simply citing a medical diagnosis, a petitioner must provide evidence to establish how the medical diagnosis affects the ability of the individual to manage their personal affairs. In other words, why is this intervention necessary? How is this person failing to manage their day-to-day life? Where does the individual require assistance?

Most states have a statutory requirement to consider guardianship only when less restrictive alternatives are not available. Such alternatives could include using powers of attorney, either pre-existing powers of attorney, or if none, determining whether the client has the capacity to execute powers of attorney after a petition for guardianship has been filed. Other alternatives to guardianship include community and/or family support, technological assistance or limited orders. A more recent alternative to appointment of a guardian is the use of supported decision-making (SDM). 

SDM is increasingly being used or considered as an alternative to guardianship because it allows  individuals to make important decisions or communicate their preferences -- with support from a trusted relatives or friends who help them understand and appreciate the alternatives available, including the pros and cons of a decision --, rather than appointing a guardian  to do so. The National Resource Center for Supported Decision-Making has information about state law and other resources on SDM for practitioners at  www.supporteddecisionmaking.org.

"Supported decision-making" means a process of supporting and accommodating an adult with a functional impairment to enable the adult to make life decisions, including decisions related to where the adult wants to live, the services, supports, and medical care the adult wants to receive, whom the adult wants to live with, and where the adult wants to work, without impeding the self-determination of the adult.

Wis. Stat. § 53.01(6) – Definitions.

To defend against the appointment of a guardian, the attorney should present evidence to the court of the client’s successful management of his or her day-to-day life. This is best presented by third parties with no interest in the outcome of the proceeding who can testify as to the client’s ability to manage their own affairs.  Such witnesses may include a neighbor, an apartment manager, a home health aide, a physician, an accountant or a banker who has observed the client routinely.   The testimony should focus on the client’s ability to manage his or her instrumental activities of daily living (IADL’s) and performing basic tasks needed to meet care needs.  IADLs include housework, shopping, preparing meals, paying bills and using the telephone. Testimony from witnesses who have observed the client performing instrumental activities of daily living or other tasks, or supervising another individual performing activities at the direction of the client, can rebut the claim that the client requires the appointment of a guardian to make decisions on behalf of the client.  IADL’s are higher level activities than ADL’s, which include walking, getting in and out of bed or a chair, bathing, dressing, toileting and eating.  An individual may be physically frail enough to need assistance with an ADL or IADL, but still have sufficient cognition to direct or supervise the activity. Testimony from unbiased individuals regarding their observations of the client can be useful for defeating a petition or limiting the authority of a guardian if one is appointed.

The petition may include a report based on neuropsychological testing, which is designed to test how an individual’s brain functions. The standardized tests and the scores are compared against a database of results for persons of the same age as the individual who is the subject of the current examination. The evaluator provides an opinion as to the functional abilities of the subject.  When the test results indicate that the subject is performing below the level expected for an individual of that age, the report may be used as evidence of the need for appointment of a guardian. 

Clients who receive test results that show they’re not performing as well as their peers will often want to be retested, claiming bias or complaining that they weren’t in good health or slept poorly the night before the examination. However, if results from a second test confirm the findings of the first evaluation, it can be very difficult to defeat the appointment of a guardian. It may be a better course of action to review the report for opportunities to cross-examine the evaluator regarding the conclusions reached from testing results than to take the chance that a second evaluation confirms the findings of the first one. 

The author understands from experience how difficult it can be to dissuade a client from insisting on another evaluation, though this is usually not the best course of action. However, there can be good reasons to retest a client:

  • A non-native English speaker could do better in the language in which he is more fluent.
  • An elderly client who was tested soon after suffering a debilitating illness or undergoing major surgery could get better results the second time around.    

It is usually the case that the client wants to testify, and sometimes, that testimony can be valuable in proving the ability of the client to manage his or her own affairs. However, in some cases, it is apparent when working with a client that testimony is not likely to be helpful in defending against the allegations in a petition for guardianship.  The attorney will have to take into account the desire of the client to address the court weighed against the risk that upon cross examination the petitioner could elicit testimony from the client that is not helpful to the defense against the petition. The client makes the decision, and the attorney should make certain that the client understands the risks in choosing to testify, to the extent the client is capable of understanding this.

In some instances, it can become clear that the goal of defeating a guardianship petition is not likely achievable.  In such cases, the attorney should work with the client to determine what goals are achievable and to work toward those goals.  If the client would prefer a different nominee to serve as guardian, it may be necessary to file, or have an interested party file, a competing petition nominating a different individual. If so, the attorney should make certain that the competing petition is timely filed and all prerequisites to the appointment of the alternative nominee have been met.

The attorney should also work with the client to present evidence on limitations to the authority of a guardian.  The guardian might be restricted from changing the client’s residence, absent an emergency or agreement of the client without first seeking a court approval. The guardian might be restricting from choosing specific individuals as medical providers without the consent of the client.  The guardian might be ordered not to restrict the client’s reasonable access to cigarettes, alcohol or marijuana (if legal in your jurisdiction).  The client might retain the right to drive or take the public transit system, absent a driving evaluation or a court order.  The attorney should speak with the client about the client’s lifestyle and values when considering limitations to the authority of a guardian.

Another role for counsel in adult guardianship matters is in the restoration of rights, or dismissal or limitation of the authority of a guardian in a later proceeding. In such cases, it is likely that the client will need to undergo a new neuropsychological examination to document either a change in condition or to provide more evidence of the client’s abilities.

It may be that the original guardianship order was entered without sufficient evidence of incapacity. Or it may be that the client’s condition, which was the reason for the original petition, has resolved or improved to the point where the client is now capable of managing some or all of their own decisions. The attorney should know what the requirements are in his or her jurisdiction for a court to permit the client to engage counsel and to request an evaluation.

An attorney may also be engaged or appointed to represent an individual already under guardianship when the client has objections to the actions of a guardian. The guardian may be failing to properly perform their obligations as guardian or may be taking actions that are not within the authority of the guardian. The attorney should cite the authority in such cases and be able to establish for the court how the guardian’s actions do not meet his or her statutory obligations.

It can be very fulfilling for attorneys to advocate for the rights of individuals who are the subject of an adult guardianship petition and who face the loss of significant personal autonomy. But, like any area of practice, to perform this role well requires study and familiarity with guardianship law.

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Catherine Anne Seal

Bio

Catherine Anne Seal is the senior member in the law firm of Kirtland & Seal L.L.C. in Colorado Springs.  Ms Seal is the Public Administrator for the Fourth Judicial District of Colorado, serving El Paso and Teller Counties.  She is the first person ever awarded an LL.M. Degree in Elder Law from the Stetson University College of Law, graduating with honors.  Ms. Seal is the current chair of the National Guardianship Network. She is a member of the American Bar Association’s Real Property, Trusts and Estate Law Section where she is a past chair of the Surrogate Decision Making Committee.  She is a former President of the National Academy of Elder Law Attorneys and is past-chair of the Guardianship Section and is a Fellow of the Academy. She is one of only eight attorneys in Colorado designated a Certified Elder Law Attorney by the National Elder Law Foundation. Ms. Seal is the author of Colorado Elder Law, published by Thompson West Publishing as part of their Colorado Practice Series.  Her practice is concentrated in the areas of elder law, protective proceedings, probate, financial exploitation of the elderly, and related matters.