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If a person loses mental capacity, and does not have advance directives in place (mainly, a Power of Attorney or Health Care Proxy), family members will not have any legal authority to act on that person’s behalf. Signing advance directives is one of the crucial first steps in Elder Law planning, but sometimes it just doesn’t get done.

In this situation, a judge needs to assign a Guardian. Often a family member initiates a Guardianship Proceeding in court, so they can be in a position to be able to manage the financial affairs and make health care decisions for their incapacitated family member. However, just because you file a petition for Guardianship, doesn’t mean it will be granted to you. The Proceeding has specific steps.

First, the court has to determine whether the individual in question is in fact an incapacitated person. That can be done by having physicians examine the person and give their opinions, and gathering evidence that the individual is no longer capable of handling their own affairs or making informed decisions. Second, the court decides who will be chosen as Guardian or Guardians. Third, the court decides what responsibilities will be granted to each Guardian. For example, the court might grant guardianship of the person’s financial assets to one person (for example, a child who is a banker), and their health care decisions to another (perhaps a child who is a nurse).

It can happen that a Guardianship is contested, with two people (or more) claiming that they should be the Guardian. It can get very messy, and it is expensive and time-consuming under the best of circumstances. This is why we stress so strongly the importance of getting a Power of Attorney and a Health Care Proxy in place.

A Guardianship Proceeding should be avoided if at all possible. However, situations arise that can be out of your control that will require one. If you wish to become the Guardian of a person who has lost mental capacity – and it could be your husband, child, sibling, or other person – Lamson & Cutner can represent you in court. We have years of experience in this type of proceeding.

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