Contested Guardianship; How to Get a Medical Evaluation for an Unwilling Ward

You’re concerned about a family member. Their memory isn’t what it was. They’re having trouble focusing. You don’t think that they are able to properly care for themselves. They tell you that they’re fine and that they don’t need any other help. The situation is getting worse. You know that if you don’t seek some kind of intervention, that they’re going to hurt themselves.

You decide to file for guardianship over your family member for their own good. You know that they can’t take care of themselves, are legally incompetent (not able to comprehend their decisions and take care of themselves), and need you or another family member to handle their affairs. One big problem; the Court requires you to submit a statement from a medical professional and your family member certainly won’t submit to an examination voluntarily. What do you do?

You’re going to have to do two things: 1) Request that the Court waive the requirement of an initial mental competency examination and 2) request that the court appoint an independent medical professional to provide an expert evaluation.

You’re not going to be able to get a finding of incompetence without both of these things. The bar to finding a person to be legally incompetent is very high. It must be made by clear and convincing evidence, a much higher standard than most civil cases. For a guardianship on the basis of competence, that burden can only be achieved through expert testimony as to the competency of the ward.

A probate court may appoint physicians and others to assist it in determining the need for a guardianship. A court can order an examination when 1) the mental or physical condition of a ward is in controversy, and 2), the applicant must be able to establish good cause for the examination.

A ward’s mental condition may be placed at issue by merely filing the application for guardianship and alleging that the ward is incompetent. Good cause for the examination can be shown through some kind of evidence. This can be in the form of an affidavit (a statement under oath), recording, or other documents demonstrating that the proposed ward is incompetent. These can be your own personal observations, observations of friends or family, or any other documents you have showing reduced mental capacity.

Courts are reluctant to award guardianship over someone who believes themselves to be legally competent. Make sure that you have strong evidence showing the need for an independent medical exam before filing your application for guardianship.

This article is meant to be utilized as a general guideline for understanding certain legal issues. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first.  If you have questions about your particular legal situation, you should contact a legal professional. 

Nick Weiss is available at 216-417-5111, or nick@npweisslaw.com. See more articles at npweisslaw.com.