Contested Guardianship

Question (About a Contested Guardianship): I received Court papers that say that my brother is trying to take control of my mother’s finances and make medical decisions for her. I have been taking care of my mother for years and my brother is estranged from me and my mother. What should I do?

Answer: It appears that your brother has started a proceeding asking the Court to appoint him as your mother’s legal guardian. A guardianship proceeding is usually commenced if someone believes that another adult is incapacitated, which means that the adult can no longer care for him or herself or make decisions about health or finances. If a Court determines the adult is incapacitated, the Court would appoint someone, preferably a relative or friend, to be the guardian to make decisions on behalf of the incapacitated person. The law states who has the right to commence a proceeding and it is usually done by a close family member who is concerned about the welfare of the adult. Before a Court can appoint a guardian, the Court will also determine that there are no “available alternatives” to the appointment of a guardian. Examples of some “available alternatives” are a valid health care proxy and/or power of attorney. If there are available alternatives and those appointed persons are acting properly, the Court will not appoint a guardian.

In your case, it appears that your estranged brother may have commenced a guardianship proceeding for the wrong reasons since he is estranged from your mother and you have been caring for her for years. Unfortunately, sometimes family members will commence a guardianship proceeding to fight over assets of an elderly family member in an effort to ensure there is money left to inherit. A common example is when a parent executes a power of attorney allowing a certain child to help the parent. The other children may then become concerned that the child who has been appointed to help with a parent’s finances will steal or spend all the parent’s money, which will leave nothing for the children to inherit. Unless there is actual evidence of wrongdoing by the child who is appointed as power of attorney, a guardianship is not appropriate under these circumstances since there is a a valid alternative to the appointment of a guardian.