A guardianship is designed to designate a qualified individual appointed by either the family or probate court to oversee and manage the personal affairs of an individual not capable of doing so on her own. There are two general areas in which you can contest a petition for guardianship while it is being considered by the court. First, you can make the argument that the individual that is the subject of a guardianship is not in need of this type of assistance. Second, you can contest the appointment of the individual seeking to be appointed as the guardian.
Prepare an entry of appearance in the pending guardianship case. The contents of an entry of appearance is straightforward:
"COMES NOW Martha Doe, an interested party, who enters her appearance in the above and foregoing matter."
Caption the entry of appearance with the title of the case, which likely is something to the effect of:
IN RE The Guardianship of James Doe, a disabled person.
Make sure you include the case number in the caption.
Sign the entry of appearance.
File the entry of appearance with the court clerk.
Delivery a copy of the entry of appearance to the person who filed the guardianship case or her attorney. In most cases, the person who filed the petition is the individual seeking to be appointed guardian. If this person is represented by an attorney, the copy is sent to that individual.
Prepare an objection to the guardianship. Contest either the establishment of a guardianship or the appointment of a particular person as guardian or both.
Visit the court clerk--either at the brick-and-mortar office or online--to obtain a sample or form to follow in preparing your objection to guardianship. Often the clerk's office maintains standard forms and sample documents for use by people not represented by attorneys.
Establish why you are an appropriate interested party in the first paragraph of the objection to the guardianship. For example, if you are the sister of the person who is the subject of the proceedings, make that point clear at the start of your objection.
Set forth specific reasons why you feel the guardianship is unnecessary, why the person seeking to appointed guardian is inappropriate to the task or reasons addressing both issues. Identify specific facts and witnesses to support your contention.
Suggest an alternate individual to serve as the guardian if you oppose the individual nominated in the initial petition but believe the guardianship is appropriate.
File the objection to the guardianship with the court clerk, sending a copy to the chambers of the judge presiding over the case.
Obtain from the court clerk or the administrative assistant in the judge's chambers the date and time for a hearing on your objection. Inquire as to whether the court will notify the other parties to the case of the hearing or if you need to take this step yourself. If you are not represented by an attorney, the court likely will undertake this task.
Send a copy of the objection to the guardianship to the individual who filed the initial petition of his attorney.
Gather and organize documents in support of your contention. If there are witnesses you desire to have testify, request the court clerk subpoena them to appear. Even if the witnesses promise to be on hand, if they do not show up and you have not requested subpoenas, the judge is unlikely to continue the proceedings to allow you time to get the witnesses into court.
Attend the hearing. Present all evidence and witnesses in support of your position contesting the petition for guardianship.
- Consider retaining an attorney to represent you in regard to your objection to a guardianship. Guardianship cases are quite complex, and objecting to the appointment of a guardian is challenging. Local and state bar associations maintain directories of attorneys that practice in different areas. Although these organizations do not recommend counsel, they can provide you a roster of names. Contact information for these organizations is available through the American Bar Association.
- "Guardianship, Conservatorship and the Law"; Margaret C. Jasper; 2008
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