People who might need a guardian, also known as alleged incapacitated persons (AIPs), have several legal rights during the guardianship process. These rights ensure that courts grant guardianship only when necessary, respecting the AIP’s autonomy and best interests throughout the process.
Notification and representation
The AIP must receive a notice explaining that someone has asked the court to appoint a guardian for them. This notice must tell them when and where the court hearing will be, that they’ll have a lawyer to help them and what could happen if the court decides they need a guardian.
If the AIP doesn’t already have an attorney, the court must appoint one for them. This is crucial because guardianship proceedings can be complex. An attorney can explain the process, protect the AIP’s rights and express the AIP’s wishes to the court.
Fair capacity assessment
During a guardianship proceeding, the court must conduct a careful and fair evaluation of the AIP’s abilities. This includes appointing a team of three experts to assess the person’s capacity, one of which must be a physician or psychiatrist. Each member independently examines the person and submits a report about various aspects of the person’s life, including their ability to:
- Make decisions
- Manage finances
- Care for themselves
The AIP also has the right to present their own evidence to the court. This might include medical records, testimony from family or friends or evaluations from other experts the AIP chooses. At the court hearing, the AIP or their lawyer can question or cross-examine any witnesses.
Preserving independence
When someone is struggling to manage their affairs, guardianship isn’t always the first or best solution. If guardianship is necessary, the court should only remove rights the person truly can’t exercise safely. They must preserve all other rights.
For example, someone might need help managing finances but be perfectly capable of deciding where to live or what medical treatment to receive. In this case, the court might limit guardianship to financial matters only.
Protect your rights and interests
Guardianship decisions can have far-reaching consequences. If you or a loved one is facing this situation, remember that support is available. Consider reaching out to an attorney to discuss your case.