Contested Guardianship Attorneys
A guardianship becomes contested when the people involved disagree about whether an adult needs a guardian, who should serve, or what the guardian should decide. The adult may oppose the petition, relatives may seek appointment, or the parties may disagree about the proposed powers. The court resolves these issues through evidence, testimony, and a hearing.
The decisions can affect where the adult lives, who manages finances, and how medical care and visits are arranged. Representation should focus on the adult’s needs and preferences, the available evidence, and the least restrictive way to provide appropriate support.
Milvidskiy Law Group P.C. represents petitioners, objecting family members, cross-petitioners, and existing guardians and conservators in contested proceedings in the New York Supreme Court, the New Jersey Superior Court, and the Connecticut Probate Court. We also provide guardianship defense for the adult named in the petition.
Key Takeaways:
- Three questions are contested in most cases: whether the adult is incapacitated and needs a guardian, who should serve, and what powers the guardian should have. Each is decided on evidence, and the petitioner must prove incapacity by clear and convincing evidence in each of our states.
- The court chooses the guardian on the adult’s interests, not on which relative filed first. A candidate’s conflicts, financial dealings with the adult, history with the family, and ability to cooperate all matter, and a neutral professional is often appointed when relatives cannot agree.
- Most contested guardianships settle. A negotiated order, with limited powers, reporting, visitation, and a neutral where needed, usually preserves more of the adult’s autonomy and assets than a trial does.
What Gets Contested
Whether a guardian is needed at all
The adult, or a relative, may contend that the adult can still manage, that a period of difficulty caused by illness or medication has resolved, or that a valid power of attorney and health care proxy already meet the need. The petitioner must prove incapacity by clear and convincing evidence, must show that harm is likely without an appointment, and must show that nothing less restrictive will do. The requirements for an adult guardianship petition vary by state, and a defense may challenge whether those requirements have been met.
Who should serve
When more than one person seeks appointment, the court is not bound by who filed first. It considers the adult’s own preference, any nomination the adult made while competent, each candidate’s relationship with the adult and with the rest of the family, conflicts of interest, financial dealings with the adult, and the ability to work with the others. A candidate who has been managing the adult’s money without records, who benefits from a recent deed or beneficiary change, or who has isolated the adult from the family can expect those matters to be examined by the court.
What the guardian may decide
Even where the need for a guardian is conceded, the scope is contested: whether the guardian may sell the house, move the adult to a facility, change the estate plan, make gifts, or restrict visitors. Courts in our states favor limited orders that leave the adult every right they can still exercise, and the powers granted are a matter of proof and negotiation.
Conduct of an existing guardian
A guardianship already in place can be contested by a petition to remove the guardian, to compel an accounting, to modify the powers, or to restore the adult’s rights. Relatives who are denied visits, who suspect that the guardian is spending the adult’s money on themselves, or who believe the adult has recovered use these proceedings. A request to return decision-making authority to the adult is generally called restoration of capacity.
How Contested Proceedings Work in Each State
New York
Petitions for adult guardianship in New York are brought in the Supreme Court under Article 81 of the Mental Hygiene Law. The court appoints a court evaluator to investigate and report, and it appoints counsel for the adult in a range of circumstances, including whenever the adult wishes to contest. Any party may present evidence, call and cross-examine witnesses, and demand a jury trial on disputed facts, and the hearing is held in the adult’s presence unless the adult cannot attend. A temporary guardian may be appointed while the case is pending on a showing of danger to the person or property. Competing candidates file cross-petitions, and the court’s order specifies the powers granted. Fees of the evaluator and appointed counsel are generally paid from the adult’s assets, and the court may direct the petitioner to pay them if the petition is dismissed.
New Jersey
Proceedings are brought in the Superior Court, Chancery Division, Probate Part, by a verified complaint supported by affidavits from two physicians, or a physician and a licensed psychologist, who examined the adult within thirty days before filing. The adult receives twenty days’ notice and may demand a jury trial, and the court appoints counsel for the adult if the adult is unrepresented; a guardian ad litem may be added to report on the adult’s interests. Relatives who object or who seek appointment themselves answer the complaint and appear at the hearing. The court may appoint a general or a limited guardian and may honor a surrogate decision-maker the adult chose before losing capacity. Fees of the plaintiff’s attorney, appointed counsel, and any guardian ad litem may be charged to the adult’s estate.
Connecticut
Applications for conservatorship are heard in the Probate Court, which must find by clear and convincing evidence that the respondent is incapable, that the respondent’s needs cannot be met without a conservator, and that appointment is the least restrictive means available. Medical evidence must come from a physician who examined the respondent within forty-five days, the respondent may nominate the conservator, and the court must consider supportive services that would avoid an appointment. A temporary conservator may be appointed in an emergency for a limited period. Objecting relatives appear at the hearing and may present evidence, and any aggrieved party may appeal the decree to the Superior Court within forty-five days after the court sent it.
Evidence in a Contested Guardianship
- Medical and functional evidence: the required physician reports, cognitive testing, and, where the timing or the diagnosis is disputed, an independent evaluation.
- Financial records showing how the adult’s money has been handled and by whom, which often decide the who-should-serve question.
- The adult’s own documents: powers of attorney, health care proxies, trusts, and any nomination of a guardian, which bear on both the need for an appointment and the choice of guardian.
- Testimony from the adult, family members, caregivers, aides, and physicians about how the adult functions and what the adult wants.
- The court evaluator’s or appointed counsel’s report, which carries substantial weight and is prepared from interviews the parties should approach with care.
Financial Exploitation Inside the Guardianship Case
Many contested guardianships are, underneath, disputes about money that has already moved. A petition follows a deed to one child, a new joint account, or a changed beneficiary designation, and the other relatives want both a guardian and the property back. The guardianship court can address some of this directly by appointing a guardian with authority to investigate and recover, by restraining further transfers, and by ordering an accounting from an agent under a power of attorney. Other claims involving elder abuse and financial exploitation may require separate proceedings, and the evidence developed in the guardianship case often decides a later will contest, undue influence claim, or accounting.
Resolving the Dispute Without a Trial
Most contested guardianships end by agreement, and the agreements are usually better than verdicts. Common terms include a limited order covering only the decisions that need a guardian, co-guardians with defined roles, a neutral professional as guardian of the property with a family member as guardian of the person, visitation schedules, periodic accountings to the family, and a standstill on selling the home. Our alternative dispute resolution services include preparing for those negotiations, and our professional fiduciary services include serving as the neutral when the family cannot agree on one of its own.
What Our Contested Guardianship Service Includes
- An early assessment of the petition, the medical evidence, the candidates, and the money, and a recommendation on whether to petition, object, cross-petition, or negotiate.
- Preparation of petitions, answers, objections, and cross-petitions that meet each state’s requirements and deadlines.
- Independent evaluations, witness preparation, and the financial reconstruction that usually decides who serves.
- Emergency applications for temporary appointments and restraints, and opposition to them.
- Hearings and trials, including jury trials where the right exists, and appeals within the short periods each state allows.
- Negotiated orders and settlements, including limited powers, reporting, visitation, and neutral appointments.
- Petitions to remove or replace a guardian, to compel an accounting, to modify powers, and to restore rights.
When a Contested Proceeding Is Not the Right Path
A guardianship contest is expensive, public, and paid for from the adult’s own assets. Where the only disagreement is which relative should serve, a negotiated arrangement or a neutral guardian usually costs less and reduces disruption compared with a trial. Where the adult still has capacity, the answer is often new incapacity planning documents that name the people the adult chooses, rather than a court order. Our recommendations center on the adult’s welfare, autonomy, and care needs. We recommend litigation when the adult is at risk, when the wrong person is about to gain control, or when the other side has refused every reasonable alternative.
Schedule a Consultation About a Contested Guardianship
If you have been served with a guardianship petition, if a relative has filed one you believe is wrong, or if you need to challenge a guardian who is already serving, bring the petition, any medical reports, and the adult’s planning documents. The timetable runs from service and early decisions can affect the course of the proceeding. Our attorneys practice in New York, New Jersey, and Connecticut. Contact Milvidskiy Law Group P.C. to schedule a consultation.
This page is provided for general informational purposes only and does not constitute legal advice. Laws differ by state and change over time. For advice about your situation, consult a qualified attorney.
Frequently Asked Questions
What makes a guardianship contested?
A guardianship is contested when the adult named in the petition, a relative, or another interested person disputes whether a guardian is needed, who should serve, or what powers the guardian should have, or seeks to remove or replace a guardian already appointed. The proceeding then involves evidence, witnesses, and a hearing or trial rather than an uncontested appointment.
Can I object to my sibling being appointed guardian of our parent?
Yes. You may file an objection and, if you want to serve instead, a cross-petition. The court decides who serves on the adult’s interests, considering the adult’s own preference, any earlier nomination, each candidate’s relationship with the adult and the family, conflicts of interest, and financial dealings with the adult. Filing first does not decide the question.
What does the petitioner have to prove?
In each of our states, incapacity must be proven by clear and convincing evidence, and the court must find that a guardian is necessary and that no less restrictive arrangement will meet the adult’s needs. New Jersey requires affidavits from two physicians, or a physician and a licensed psychologist, who examined the adult within thirty days before filing; Connecticut requires evidence from a physician who examined the respondent within forty-five days.
Who pays for a contested guardianship?
Usually the adult’s own assets. In New York the court evaluator’s compensation and appointed counsel fees are generally paid from the adult’s estate, and the court may direct the petitioner to pay if the petition is dismissed. New Jersey may charge the fees of the plaintiff’s attorney, appointed counsel, and a guardian ad litem to the adult’s estate. That cost is one reason to weigh settlement seriously.
Can the court appoint someone other than a family member?
Yes. Where relatives cannot agree or each has a conflict, courts often appoint a neutral professional as guardian, sometimes as guardian of the property with a family member as guardian of the person. Our attorneys serve in that role where a family or a court needs one.
Is there a jury trial in a contested guardianship?
In New York, a jury trial may be demanded on disputed factual issues in an Article 81 proceeding. In New Jersey, the adult may demand a jury trial, and the notice served on the adult must say so. Connecticut conservatorship hearings are decided by the Probate Court, with an appeal to the Superior Court.
How do I challenge a guardian who is already serving?
By petitioning the court that appointed the guardian to compel an accounting, modify the guardian’s powers, remove and replace the guardian, or restore the adult’s rights. Grounds include mismanagement of the adult’s money, failure to file required reports, isolating the adult from family, and conflicts of interest. The guardianship court supervises the guardian and can act on these petitions.
What if the person seeking guardianship has been taking my parent's money?
Raise it in the proceeding. A candidate’s financial dealings with the adult are directly relevant to whether that person should serve, and the court can restrain further transfers, order an accounting from an agent under a power of attorney, and appoint a guardian with authority to investigate and recover property. Claims to set aside deeds and transfers may be pursued alongside the guardianship.
How long do I have to appeal a guardianship decision?
The periods are short and differ by state. In Connecticut, an appeal from a Probate Court decree in a conservatorship matter must generally be filed within forty-five days after the court sent the decree. New York and New Jersey have their own appellate deadlines. Because the clock runs from the decision, appeal rights should be evaluated immediately.
Can a contested guardianship be settled?
Most are. Typical terms include a limited order covering only the decisions that need a guardian, co-guardians with defined roles, a neutral guardian of the property, visitation schedules, periodic accountings to the family, and a standstill on selling the home. A negotiated order usually preserves more of the adult’s autonomy and assets than a trial.
