Prospective Ward’s Attendance at the Guardianship Hearing

A busy schedule this week with guardianship hearings. One of them today got me to thinking again about the requirement that the alleged incapacitated person be present at the guardianship hearing.

One of the most common complaints from family members seeking a guardianship over a loved one is that the elder has to be present at the hearing. Understandably, the family fear that the elder will be unduly upset, that “they won’t understand what’s happening, anyway,” etc.

Well, sorry folks, but that’s what the law requires, with certain exceptions. (See Indiana Code § 29-3-5-1(d)) And when you think about it, it’s for good reason. After all, the appointment of a guardian will effectively take away the rights of the elder and place them in the hands of a surrogate, so a little “due process” would be nice. This is serious business.   The requirements of due process are there for the protection of all of us.

Not only does meeting this requirement honor the dignity of the elder and the requirements of the law, the presence of the elder is often the best evidence of the need for a guardian. Most attorneys, and the judge, will be respectful to the elder and make them as comfortable as possible. The elder in my guardianship case today reminds me that while potentially stressful for the elder, the process can in fact be a chance for the elder to have their say – to speak their mind – and be listened to by some important people, like the judge.   That, in and of itself, is a way of showing the elder respect.

About H. Kennard Bennett

Ken Bennett is a partner in the elder law firm of Bennett & McClammer and is Founder & Team Leader at Scout Guardianship Services. He also founded and serves as Executive Director and Senior Counsel to the Center for At-Risk Elders, Inc., a public interest law firm that, among other things, operates the CARE Volunteer Advocates Program, providing guardianship services to low-income, unbefriended, incapacitated adults.

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