Attorneys Can Help Prevent Bias in Guardianship Proceedings

When a person has petitioned the court for guardianship over you or your loved one, the case’s end result will determine your or your loved one’s rights.

If the court appoints a guardian, the ward can lose the legal ability to make decisions. Depending on the type of guardianship, the guardian might decide where the ward lives, what kind of care the ward receives, and how to manage finances.

Although guardianship can benefit individuals who genuinely need help and protection, improper arrangements can adversely impact a person’s life.

Bias, Ageism, and Ableism

In some cases, bias can influence judges, attorneys, guardians ad Litem, and petitioners, ultimately shaping the court’s final decision. Ageism and ableism can lead the court to agree with the petitioner. As a result, the court may appoint an unnecessary guardian or a type of guardianship that is overly restrictive, such as plenary or total guardianship, instead of limited guardianship.

Ageism refers to bias and discrimination against older people. According to Ageism.org, ageism can affect many domains, from the workplace to the health care setting. People involved in guardianship cases might inappropriately assume that a person needs a guardian simply because of advanced age rather than bona fide problems with health, finances, or personal affairs.

Ableism is bias against and discriminatory treatment of disabled people. Many proposed protected persons are older people with disabilities. People involved in the judicial system sometimes have mistaken ideas about those with disabilities, assuming that the existence of disability makes them unable to handle their affairs.

In some cases, a poor understanding of conditions can make people believe that difficulties in one area mean that a person is generally impaired and cannot make decisions. However, having a disability is not grounds for guardianship unless the proposed protected person cannot manage their personal or financial affairs.

Courts also may not appropriately accommodate disabilities. For instance, the courtroom might be inaccessible to those with mobility challenges. Hard-of-hearing people might have trouble understanding what is happening in the courtroom if the lawyers and judges speak too quickly.

How an Attorney Can Help

If you or your loved one are facing guardianship proceedings, an attorney can help you combat the adverse effects of bias.

• Your attorney can advocate for you and refute assumptions that advanced age or disability necessitates guardianship. With your attorney’s assistance, you can contest the guardianship and ask the court for a less restrictive alternative, such as limited guardianship or supported decision-making.

• Your legal counselor can reach out to the court and request accommodations so that you can access the proceedings. For instance, an attorney might request a Zoom hearing with captioning for a homebound, hard-of-hearing client. Requesting a hearing at a time of day when the proposed protected person is most alert can also be beneficial.

• Building your case, your attorney can collect evidence and obtain witnesses who can testify to your ability to handle your affairs.

Individuals without an attorney could be more susceptible to the biases of the court. Consider contacting an attorney to help protect your autonomy.