Ten Reasons People Get Railroaded into Guardianship

MARGARET K. DORE, Attorney at Law Ten Reasons People Get Railroaded into Guardianship

Some professional guardians petition the court to have themselves appointed guardian of persons with whom they have no prior relationship. If appointed, the professional guardian becomes entitled to an income stream, i.e., fees from the person's assets. This practice was been termed "trolling for clients.",, The LA Times describes one version, as follows:
Conservators [guardians] find clients by sponsoring breakfasts at senior centers and networking at legal luncheons.... Once conservators [guardians] identify a prospect, they can go to court and initiate a case without the client's approval

With the professional guardian's lack of a prior relationship with the proposed ward, the professional guardian may not realize all the facts: for example, that the proposed ward was only temporarily incapacitated and is actually competent; or that the proposed ward has a valid power of attorney and his attorney-in-fact merely needs to be called. The professional guardian is then faced with a conflict of interest. He can admit that he was wrong and dismiss the guardianship, which may cause him to bear his own fees, or he can move forward for his own appointment. With the latter scenario, he may be appointed guardian even though the guardianship will be unnecessary.

Caselaw provides that the constitutionally required burden of proof for a guardianship is "clear and convincing evidence however for this task, hearsay and innuendo are often sufficient, for example, that the proposed ward is a spendthrift or the siblings of the affected person do not see eye to eye on certain issues such as how to care for the ward.

If the visitor's recommendation to impose the guardianship is accepted by the court, the guardianship will be imposed. This is a typical result. The supporting evidence will not be clear and convincing, but hearsay and innuendo.

The guardian ad litem is, regardless, more likely to be paid if the guardianship is imposed. This is because with the appointment of a guardian, there is an official person (the guardian) who will be ordered to pay the guardian ad litem's fee from the ward's assets. If, by contrast, the guardianship is not imposed, there will be no official person to pay the fee.

State statutes in Florida are clear : that guardianship is to be used only as a last resort; and that the burden of proof is clear and convincing evidence that the proposed ward is incompetent to handle his/her affairs. (and that there IS NO alternative to a guardianship in that the 'Ward' has not made it clear through pre planning documents whom him/her wants to handle his/her affairs in case of incapacitation.)

"More broadly, there are numerous conflicts of interest that allow competent individuals to find themselves forced into guardianship. The next time, it could be you." Margaret K.Dore,Esq.

Excerpts taken from American Journal of Family Law
MARGARET K. DORE Attorney at Law, excellent work on
Reasons People Get Railroaded into Guardianship