Tuesday, September 20, 2016

Gavel to Gavel: Subtle changes to guardianship

Senate Bill 1495, signed by the governor on May 20, imposes subtle changes on guardianship procedure. First, the new law adds to the list of a prospective ward’s relatives entitled to notice of guardianship proceedings. Second, the new law appears to require that the prospective ward’s relatives must now seek permission to intervene in order to participate and be heard.

Current law provides for notice of guardianship proceedings to the prospective ward, her spouse, attorney and adult children. If the ward has no adult children, then the law requires notice to the prospective ward’s parents. If the ward has no adult children or living parents, then the law requires notice to “all adult brothers and sisters … and all adult grandchildren” of the prospective ward.

The new law would add to this last provision. If the ward has no adult children or living parents, then the new law would also require notice to “all adult children of any deceased brothers or sisters” of the prospective ward.

By adding to the list of people potentially entitled to notice, this new provision would appear to give preference, under certain circumstances, to a prospective ward’s nieces and nephews.

In addition to this new notice requirement, the new law would also appear to impose a new requirement on anyone entitled to notice of the guardianship proceeding. Although a subtle change, it would appear that anyone entitled to notice will now be required to ask the court for permission to intervene before participating in the guardianship proceeding.

Under current practice, anyone entitled to notice of the guardianship may appear and be heard regarding whether the prospective ward is incapacitated and whether court should appoint a guardian. The very purpose of notice of guardianship proceedings is to provide the noticed person with an opportunity to participate in a meaningful way.

Often, relatives who receive notice of guardianship proceedings are not represented by lawyers and will simply show up at the hearing. They may not be aware that they might now be required to apply for permission to intervene. Whether represented by counsel or not, people entitled to notice should not be barred from participating in the guardianship proceeding simply because they have not requested permission. Such a requirement could result in abuse of the system and determination of critical guardianship issues in the absence of interested persons.