Some guardians may welcome the assistance of a lawyer to help them resolve
conflicts with the ‘incapable’ person. In such cases an open and honest
discussion between a guardian and a lawyer should help resolve many issues. In
other cases, mediation may allow a guardian and an ‘incapable’ person to meet
and resolve the issues between them with the assistance and support a mediator
can provide. Unfortunately, without some degree of co-operation from the
guardian, mediated resolution is often not possible.
In some cases, the guardian may refuse to speak to a lawyer. There are a
number of possible reasons a guardian might refuse to speak to a lawyer
representing an ‘incapable person’. Family-member guardians are often under
the impression that the fact that an individual has been found incapable with
respect to property or personal care decisions means that they are also
incapable to instruct counsel. Therefore, the guardian may feel they have no
obligation to respond to a lawyer purporting to act on instructions from the
“incapable” person. Some guardians may fear that a “disgruntled” relative or
other ‘third party’ has retained the lawyer to ‘stir up trouble’.
Some guardians will seek legal counsel of their own. When the guardian selects
a lawyer familiar with capacity and guardianship issue, this can promote more
effective communications and quick resolution of disputes. When a guardian
turns to a lawyer who does not understand the special nature of guardianship
and capacity matters, problems can arise. Some lawyers representing guardians
may try to deal with the matter as if it was a purely financial dispute, or, attempt
to assert the guardian’s powers without reminding them of their obligations; by
doing so, however, the lawyer can create further barriers to communications,
increase tensions and complicate the process of resolving the conflict – usually
to the detriment of the “incapable” person. Best efforts should be used to de-
escalate the situation. If this is not possible, litigation becomes the only way to
move the issue forward.