In a previous article I explained the nature of an adult guardianship proceeding, which can be utilized to protect an elderly person who may be suffering from Dementia or some other mental condition which renders that person incapable of acting in a rational manner to protect their own physical or financial welfare. But what if the elderly person does not agree that he or she is in need of a guardian? In Idaho, legal safeguards are in place to prevent the hasty or ill-advised appointment of a guardian over the affairs of a mentally competent person.

The person seeking to become a guardian of an adult must first initiate a Petition in District Court, alleging that the proposed ward is "incapacitated." The Petition must set forth the precise grounds upon which the guardianship is sought. Idaho statute 15-5-101 provides the definition of "incapacitated."

"'Incapacity' means a legal, not a medical disability and shall be measured by function limitations and it shall be construed to mean or refer to any person who has suffered, is suffering, or is likely to suffer, substantial harm due to an inability to provide for his personal needs for food, clothing, shelter, health care, or safety, or an inability to manage his or her property or financial affairs."

The behavior suggesting incapacity must have occurred within the last 12 months, and cannot be based upon "isolated instances of simple negligence or improvidence...or lack of resources." The person for whom a guardianship is sought has the right to be represented by an attorney. In fact, the court will appoint an attorney to represent her if she does not have an attorney already representing her. The court will order a medical report from the person's treating physician, concerning the nature of the alleged physical or mental disability suffered. The court will also appoint a Visitor to interview the alleged incapacitated person, examine the medical records and make recommendations to the court concerning the need or lack of need for a guardianship.

The alleged incapacitated person has the right to attend the hearing scheduled to determine incapacity. At the hearing, the person's attorney may question witnesses, subpoena evidence and present written and oral testimony. The hearing is open to the public unless the alleged incapacitated person requests a closed hearing.

Unfortunately, in the past, such protections were often absent in the laws of many states. Old movies in which guardianship proceedings were used by unscrupulous relatives to financially exploit the elderly were not only based on fiction. Today, however, the law ensures that a guardianship is not granted without a real need to protect truly incapacitated persons.

James Bendell practices law at the Grupp Law Firm in Coeur d'Alene, and is a member of the National Academy of Elder Law Attorneys. He writes an Elder Law Blog at http://jamesbendellattorney.com/blog/.