Contested Guardianship

What is a Contested Guardianship 

A Contested Guardianship occurs when the guardian status of a person is challenged or called into question. This can happen if the person is not fulfilling their role as guardian. An example of failure in guardianship might be failing to provide basic living necessities for the ward. Neglect and abuse are common reasons to contest guardianship.  

How the Court Determines Who is Fit to Be a Guardian 

In the case of a contested guardianship, legal proceedings in court may be required. The court looks at a number of factors to determine which person is best suited to act as guardian of the ward. 

• The relationship of the proposed guardian to the ward 
• The nature of the ward’s condition (minor, disabled, elderly, special needs) 
• Whether or not there is a declaration of guardianship (link to internal page) 
• Whether or not the guardianship is being enacted in an emergency situation 
• Whether or not the guardianship is a temporary arrangement 
• The financial background of the guardian 
• The mental, physical, and emotional stability of the guardian 

Contesting Before a Guardian is Appointed  

If you have been served with legal papers about a proposed guardianship, you should have a document called the “Citation to Appear and Show Cause.” This document tells you when the court hearing is scheduled. The court hearing is when the judge makes the determination of whether or not to appoint a guardian. You may attend the hearing and raise your concerns about the proposed guardianship at the hearing. You can also file an “Objection” to the Guardianship in a written statement and submit it to the court. 

Contesting After a Guardian is Appointed  

Once a judge signs an order appointing guardianship, opposing a guardianship becomes more challenging. If you’d like to oppose the guardianship you have the following options: 

• File a “Motion to Set Aside the Order,” which claims the order was obtained due to fraud, misrepresentation, mistake, excusable neglect, or misconduct. 
• Ask the court to remove and replace the guardian if they have failed or neglected to perform their duties, mismanaged the estate, or are not suitable to serve as the guardian. 
• Ask the court to end the guardianship if it is no longer needed. 

Do I Need an Attorney to Contest a Guardianship? 

By law, you can contest a guardianship without an attorney. However, an experienced guardianship attorney can guide you through the process and ensure all supporting documents are created and filed correctly, and your arguments are relevant to what the law is concerned about.