Defense Against Guardianship: A Lawyer's Guide to Representing Individuals in Guardianship Cases

• Date: 01 January 2024

Bifocal January-February 2024 Vol. 45, No. 3

108

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.