intrusion is all the more objectionable when the client has already voluntarily
submitted themselves to assessment.
f. Who Pays for Guardian’s OppositionOne problem with turning to the Superior Court to resolve disputes involving a
court appointed guardian is that the guardian is able to take his legal fees and
costs from the account of the incapable person. A guardian can oppose the
incapable person’s attempts to assert their autonomy before a court, while using
the incapable person’s funds to pay the costs. The cost of pursuing litigation
against the ‘incapable’ person is not a deterrent to the guardian pursuing
unnecessary or unreasonable legal action.
At the same time, the guardian can refuse to release funds for the incapable
person to hire a lawyer of their own. While this may be improper, correcting the
problem may involve further litigation and additional expense for the incapable
person. This puts a lawyer in the difficult situation of having to balance the
protection of the client’s rights with the potential costs of doing so.
It may also be possible to submit a letter to the guardian and the Court early on
in any litigation warning that any excessive use of the ‘incapable persons’ funds
will be vigorously opposed. The problem is that there is no guarantee that the
Court will issue an order requiring a guardian to reimburse ‘excessive’ costs; and
even if an order is issued, there is no guarantee the guardian will have sufficient
personal funds to make restitution.
V. CAPACITY ASSESSMENTSCapacity assessments are an essential tool when asserting or re-asserting a
client’s capacity to manage their own finances or activities of day to day living.
Once a person has been declared incapable of either property management or