By Ruder Ware Alumni
May 25, 2011
You have faithfully and scrupulously carried out your Mom’s wishes. You are her primary agent under her durable and healthcare powers of attorney because Mom wants you. She wants your companionship. She wants your care and attention. She moved from the homestead to live near you because you are the one she wants. She not only loves you, but she also trusts you. Mom executed these documents because she did not want decision-making on her behalf to be supervised by a judge in a guardianship proceeding.
Family dynamics have now hit bottom. Mom has decided to cut off relations with some of your siblings. They demand to know whether Mom has a will, and they demand to see it, if there is one. Mom does not want them to know that she has made out her will, and you are duty-bound to keep her secret as her lawful agent. Your siblings project their animosity on you. In their eyes, you have turned Mom against them. Your younger brother thinks he should be your Mom’s legal actor instead of you.
Instead of trying to heal the fractured family constructively, your brother launches a bitter legal proceeding. He files a petition for guardianship back in the county where you all grew up. The petition asks the court to declare Mom legally incompetent, to remove every decision-making right she has, and to install himself as the guardian of Mom’s person and her property.
Mom is now subject to being hailed into a courthouse across the state so that a judge can see how Mom responds to lawyers’ questions. It is small consolation to Mom that the proceeding takes place with the courtroom doors closed because she feels as if her dignity, her privacy, and her independence have been destroyed. It has. While the court will appoint a guardian ad litem to represent your Mom’s objectively determined “best interests”, it might be appropriate for your Mom to have her subjective “expressed wishes” represented, too.
A famous lawyer, and one of our greatest presidents, counseled his clients to avoid litigation if at all possible. Parties to a dispute, he said, should exhaust every means at hand to compromise their differences, and resort to lawsuits only when no alternative exists. We cannot improve upon the advice of Abraham Lincoln. We simply note that the importance of his advice is nowhere more important than in a contested guardianship proceeding.
Your siblings might claim that Mom lacked the requisite capacity when she signed her durable power of attorney, her power of attorney for healthcare, and her will. That means that all of the evidence that bears on Mom’s mental capacity to sign those documents at the time she signed them is potentially subject to examination. Mom’s medical records might have to be disclosed, and her doctors might have to give testimony regarding Mom’s capacity and competency. People who signed as witnesses to Mom’s legal documents, often bank and law firm employees, are subject to giving testimony. Mom’s friends and neighbors may hold relevant evidence. Mom might have to endure examinations by neurologists, psychiatrists, and/or psychologists who are not her own healthcare providers, but who have been hired by your siblings who seek to establish control contrary to Mom’s expressed wishes. Mom’s assets are likely to become depleted because fighting these issues is time-consuming and expensive.
Can one brother (or any other sibling or person for that matter) decide to file a petition for guardianship willy-nilly and prosecute it without jeopardy? The answer depends on how much they have to lose. Under Wisconsin law if the petitioners are not able to prove that it is necessary for Mom to have a guardian, then they are liable to pay not only the fees and costs of the court-appointed guardian ad litem, but those of Mom’s own counsel as well. If your siblings have assets of their own, they should take heed of this powerful deterrent against seeking a guardianship that is truly not necessary.
Please feel free to contact Russ Wilson, the author of this article, or any of the attorneys on our Estate and Fiduciary Litigation team with questions relating to the above.
This document provides information of a general nature regarding legislative or other legal developments, and is based on the state of the law at the time of the original publication of this article. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed. You should not act upon the information in this document without discussing your specific situation with legal counsel.
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