February 12, 2020 Practice Points

Checklist for Representing Incapacitated Persons in Guardianship Proceedings

A few tips to help you advocate for some the most vulnerable of clients.

By Janice V. Arellano

At age 18, all individuals, including those with developmental disabilities, reach the legal age of majority. This means that parents can no longer make decisions legally on behalf of an adult child, regardless of the nature of the individual's disability and regardless of whether or not the individual still lives with the family. Federal law requires states to provide protective services for adults and the application and report of the attorney, as well as the attorney’s preparedness can provide the best outcomes for the incapacitated person. Guardianships is a state legal process where a court removes some or many of the legal and decision-making rights from an individual and passes all or part of those rights to another person—usually known as a guardian or conservator. In many states, guardianship proceedings are legal actions brought by a petitioner—usually a parent, child, or close friend or relative or it can be a publicly funded organization or government agency. The most basic premise is that the person or organization believes that an individual can no longer take care of their own basic needs and managing their own affairs. Guardianship statutes in all states and the District of Columbia require basic oversight mechanisms.

Most recently, I became a court-appointed attorney for alleged incapacitated individuals on the recommendation of another attorney at a previous firm. As a young lawyer, this area of law is a good way to get experience in the courtroom and advocate for an individual’s best interests, especially the most vulnerable of clients. It also provides the attorney with an understanding of the intersection of elder, disability, and education laws. I quickly become acquainted with the idea that the elderly population is growing quickly and becoming more diverse. Additionally, simply because a person has special needs does not mean that their rights to make decisions should be taken from them. Furthermore, there is a rising need for lawyers in this niche area of law, particularly for individuals with limited English language skills.

Among the cases that I have handled thus far, the most difficult cases are for those individuals who are elderly, living alone, or whose petitioners seeking guardianship have limited income or financial capacity as well. In most if not all guardianship cases, the management of an individual’s finances and property can govern the personal needs of the incapacitated. The cases that are easier to review are those of young adult students with special needs who previously or currently receive individualized education programs (IEPs) at their schools. However, a person can become incapacitated because of an illness, trauma, or accident and thus can impact anyone at any time of their life.

Interview and Investigate the Individual and Their Immediate Network

Legal guardianship should be considered an extraordinary intervention in an individual’s life and affairs and should not be granted without careful review. Most state statutes mandate that the attorney interview the alleged incapacitated individual. When doing so, make sure that you set up a time to meet them at their place of residence and at a time when the administration of medication or food is not required within an hour or two. Provide yourself enough time to observe and speak to the person about their interests, goals, and abilities. It is good practice to come up with a short questionnaire of common knowledge such as current year, current month, comprehension, and basic arithmetic. Sometimes an incapacitated individual can answer these questions but has a disability, such as an anxiety disorder, that impacts the person’s success rate in answering these questions. Determine whether that impacts the person’s ability to manage his or her own affairs. What you need to do is

  • ask for the individual’s consent for guardianship by another;
  • ask about medical history;
  • ask friends, teachers, and physicians about the person’s capacity for activities of daily living to make decisions about future employment, the right to vote, postsecondary education, driving, or even getting married; and
  • ask the petitioner seeking guardianship about their employment and medical history and determine if that person or individual would represent the needs of the incapacitated person. Make sure that if an organization is petitioning it is not seeking to place that individual with sub-par care and services, albeit unintentionally.

Review Medical and Educational Records

Request medical records from primary care physicians, specialists, and any mental health professionals. If the individual went to K-12 in the United States, ask whether the individual received a 504 plan and/or an individualized education plan/program. If so, request those documents and review them. Those are legal documents with information about a person’s strengths and weaknesses, learning styles, and needs.

Research Social Services or Alternative Programs

Guardianship can have a serious and detrimental impact on a person’s life. Make sure that the individual is supported in such a way that their best abilities and potential will be realized. Determine whether the person requires a nursing home or assisted living or if she can benefit from living alone in the community and participate in further educational or vocational programs.

Recommendation of Limited, General, or Decline Guardianship

Determine whether the individual requires a caregiver or a guardian. If a guardian is required, some states allow for limited guardianship for certain decisions of a person’s life. Limited guardianships cover decision-making around residence, educational, legal, medical, etc. For example, if a person has a disability with processing numbers and money, the guardian can be appointed as “of property,” which means only having guardianship as to the individual’s financial decision-making. Sometimes guardianships can lead an individual to subpar services or to end up receiving little to no income. Even with a developmental disability or physical disability, keep in mind that these individuals can still have the capacity to earn a living and achieve quality of life. If possible, talk to the petitioner about ensuring that the individual is not only involved in decision making for legal, financial, and medical needs but also social decisions such as friendships, activities, and employment. In some cases, general or “plenary” guardianship would be appropriate, especially for individuals who have no ability to make any decisions or incapable of managing his or her own affairs. 

Janice V. Arellano is an associate at Cleary Giacobbe Alfieri Jacobs, LLC in Matawan and Oakland, New Jersey, and former cochair of the Minority Trial Lawyer Committee. 


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