Thursday, August 28, 2014

Q & A: Can the State Try to Get Guardianship of a Nursing Home Resident's Child?

Can the state sue my elderly mother in the nursing home for guardianship of her Down syndrome child?

Yes and no. A guardianship action is not a suit against someone. Rather, it’s an action for the protection of someone who cannot take care of herself. In bringing the action, the state or an individual would have to give notice to your mother as next of kin so that she, at least in theory, would have the right to appear in court and contest the action.

Can the State Try to Get Guardianship of a Nursing Home Resident's Child?


Thelma said...

Too many cases are heard without constitutional notice, and that means "prior" notice!

Betty said...

In theory? Does that mean it's a step that can be skipped?

Alan said...

It sounds like that's the intent of the sentence. The law is the law and it should be followed without "in theory."

Anonymous said...

And if the parent is not notified, in theory that means that the court order establishing the guardianship is void ab initio.

So the guardianship order can be set aside at any time.

Lawyers (and their clients) who skip this important, legally required step of proper notice to the incapacitated person and family members are just begging for malpractice suits, suits under 42 USC section 1983, suits for physical injury, assault and battery, unlawful restraint, etc.

It's a heck of a class action lawsuit, just waiting to happen.

Anonymous said...

It happened to me in a corrupt guardianship. On appeal, the court said that my lawyer waived my right to challenge jurisdiction. I should have sued the bastard - or dummy! But I didn't know the law and I didn't know my rights.