One of the necessary steps involved in having a guardian appointed by the court is obtaining a report from an “interdisciplinary evaluation team.” This team is appointed by the court and consists of a physician, a psychologist, and a social worker. The team evaluates the elderly or disabled person, the care that person needs, and the need for a guardianship and reports back to the court.
When it comes to conservator or guardianship cases, the team’s evaluation is often the most important evidence. If the evaluation recommends that a guardianship is necessary then the guardianship will likely be easy to create; on the other hand, if it does not recommend a guardianship you will have an uphill battle.
Regardless of the interdisciplinary evaluation team’s recommendation, the elderly or disabled person has a right to have a jury determine whether a guardianship is appropriate. The elderly or disabled person has a right to be represented by an attorney at this hearing; in the event that they cannot afford an attorney, the court will appoint one for them.
It is important to realize that a jury will likely put significant weight on the evaluation team’s evidence because they are considered unbiased witnesses. While this often makes the process easier, there could also be problems, if the team did not spend sufficient time with the elderly or disabled person and does not really know the extent of his or her disability.
On the other hand, the evaluation team may prefer to err on the side of caution and recommend guardianship if there is any indication of incapacity at all. If the representative does not recommend that a guardian be appointed, convincing a jury to appoint a guardian can be very difficult.
If you are faced with a guardianship hearing, it is best to talk with your attorney to find out how much weight the evaluation team’s report will have on the case, and how you should go forward in the event that the team doesn’t recommend a guardianship.
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
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