The PDF in which this article appears can be found in Bifocal Vol. 44; Issue 3.
Defense Against Guardianship: A Lawyer’s Guide to Representing Individuals in Guardianship Cases
A Book Synopsis by David Godfrey, JD, Immediate Past Director, ABA Commission on Law and Aging
Over the last decade or so, the Courts have seen a huge increase in active defense of individuals responding to a petition for adult guardianship or conservatorship. The lawyers in these cases are often pioneers with few resources or role models. Yet, as the experience of Clark County Nevada has shown, a meaningful defense results in more than 1/3 of all cases being resolved without the appointment of a guardian. Two years ago, a search for a book on how to develop and present a case defending against guardianship found nothing, so the ABA Commission on Law and Aging decided to create one, and here it is.
Divided into 18 short chapters, the text covers the ethics of representing clients in these cases, an overview of legal capacity, an exploration of due process challenges in guardianship cases, an overview of communication accommodations, issues when guardianship is used to change estate planning, options for health care decision making, alternatives to guardianship for financial management, a review of activities of daily living and actual abilities, interventions to avoid guardianship, how select witnesses, court proceedings, a discussion of attendance by the defendant at hearings, actions to modify or terminate an existing guardianship, deciding on and developing a defense strategy, and how to select the best guardian when a guardian is needed.
The book is filled with ideas and strategies to minimize the use of guardianship. Several sections discuss alternatives to guardianship to assure that health care decisions are made, money is managed, and personal care is provided. The truth is that the majority of adults with diminished or limited capacity are supported and cared for by family and friends, without the need for guardianship. Reviewing alternatives is an essential part of every defense effort. Many of these cases can be resolved using alternatives and protect the rights of the adult, and avoid government involvement.
There are significant concerns about the due process protections in many guardianship cases. The defense attorney is the protector of their clients’ right to notice, to being heard, to confront witnesses, assuring compliance with the rules of evidence and burden of proof and all of these are explained in the book.
When a trial or hearing is needed, the defense needs to assure that their client’s needs are accommodated, and to assure that their client can participate if they wish to do so. Defense strategies range from the client having capacity, to alternatives meeting the needs of the client, to there being no need or legal reason to restrict the rights of the defendant.
The book was written by Erica Costello, Elizabeth Russo, and David Godfrey, three attorneys, each with over 20 years of experience in adult guardianship work. Erica and Elizabeth are nationally certified guardians, the first Court filing of David’s career was an adult guardianship case.
The book should be helpful for anyone looking to defend legal and human rights of adults in guardianship cases.
Published by the ABA Commission on Law and Aging. Available in the ABA Webstore. List price $49.95, ABA Member price $44.95. www.americanbar.org/products/inv/book/435500044