Promoting Judicial Acceptance and Use of Limited Guardianship

21 Pages Posted: 23 Feb 2009

See all articles by Lawrence A. Frolik

Lawrence A. Frolik

University of Pittsburgh - School of Law (Emeritus)

Abstract

Guardianship comes within the special province of judges. In the great majority of guardianship hearings, there is no jury. The presiding judge is the sole arbiter of whether the alleged incapacitated person meets the legal standard of mental incapacity and whether that person would benefit from the appointment of a guardian. If a guardian is appointed, the judge determines the type and extent of the powers granted to the guardian. Of course, the judge is not simply free to follow his or her own instincts or desires, for the judge is bound to determine the facts carefully and apply the law faithfully. Still, as the saying has it, "reasonable persons can disagree," and the judge has some latitude in how he or she responds to the facts and circumstances that arise during the guardianship hearing. Within that zone of discretion, the judge may have a range or set of choices, any of which is defensible on legal and ethical grounds. No matter which course of action the judge takes, his or her decision is unlikely to be overturned on appeal. How, then, does a judge decide what to do? Put another way, what motivates a judge who presides at a guardianship hearing and how do those motivations translate into judicial action?

Keywords: guardianship, power of attorney, judicial power, judicial discretion, elder law, aging, mental incapacity, Seniors' Rights

Suggested Citation

Frolik, Lawrence A., Promoting Judicial Acceptance and Use of Limited Guardianship. Stetson Law Review, Vol. 31, p. 735, 2002, U. of Pittsburgh Legal Studies Research, Available at SSRN: https://ssrn.com/abstract=1348105

Lawrence A. Frolik (Contact Author)

University of Pittsburgh - School of Law (Emeritus) ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-648-1363 (Phone)

HOME PAGE: http://www.law.pitt.edu/people/lawrence-frolik

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