Three things to consider with your elderly relatives and guardianship. February 26, 2015 case out of New York shows the tragedy of poorly planned guardianships and family feuds.

Guardianship is a vehicle in state courts that allows for a guardian  to be appointed by the court to watch over various faculties of an incompetent person or minor ward. These vary from control over bank accounts and assets to full guardianship including overseeing daily life. Today, February 26, 2015 the Supreme Court of Appeals of New York (which is not the highest court in New York, this is a misnomer it is the functional equivalent of the District Courts here in Florida) handed down a particularly sad case that highlights three things you need to know if you want to contest a guardianship in Florida.

• In Re Mary WW concerns the guardianship of an elderly woman living in a nursing home.
• The ward (Mary WW)’s son is the guardian and he has forbidden one sister who does not get along with the family from visiting her elderly sick mother.
• The sister petitioned the court to change the guardianship arrangement but failed to meet her evidentiary burden.
• Under New York law it was the sisters burden to prove the Court had the cause to change the guardianship visitation guidelines.
• The Court found that the sister had not met her burden, the end result being she does not get to visit her mother.

This case is extremely tragic but also surprisingly common. Guardian grudges may affect a ward or their friends and family. Remember Mary in the above case is in her nineties, she really does not have the wherewithal to bring this case and the sister is not in a position to defend it well. This leaves a catch 22 for the Florida Guardianship Attorneyin how do they bring the suit effectively. If you are in a position and wish to challenge a guardianship here are three things you should know.

1. DO NOT record someone without his or her permission. With some exceptions most states require someone to consent to being recorded (there are exceptions for recording police officers in some states as well). So if you think that you are going to record theguardian telling you how they take it personally and will not be reasonable  you cant simply hit record on your smartphone.
2. Who Brings the Suit Matters. In this case the Supreme Court of New York noted that the burden of proof i.e. to show the guardianship should be changed can be shifted if the ward is bringing the suit. This is to compensate for the unequal power between a ward and guardian. So if Mary herself brought this action its odds of success may be greatly increased.
3. Act early to avoid tragedies like this case. One thing that always shocks me about these ad-hoc or make it up as you go along guardianship plans for elderly parents is thatthis is not a surprise -everyone gets old. Talk to your elderly relatives now not laterand learn what they actually want, like who they want to visit them or where they want to live. Guardianship is not a vehicle for controlling the persons life beyond what is necessary and courts may not always be able to fix these wrongs as this case clearly shows. So act early and plan your guardianship out with your loved ones prior to when the need actually arises.