Navigating Guardianship Petitions and Capacity Determinations: The Role of an Elder Law Attorney

Guardianship petitions and capacity determinations play a crucial role in ensuring the well-being and protection of incapacitated individuals. In the realm of elder law, attorneys specializing in guardianship law are instrumental in assisting families and individuals in these complex legal processes. This blog post will explore the vital role of an elder law attorney in handling guardianship petitions and capacity determinations, highlighting their responsibilities, and the steps involved.

Understanding Guardianship Petitions: A Pathway to Protection

What Is a Guardianship?
Guardianship is a legal arrangement where a person, typically referred to as a guardian, is appointed by the court to make decisions and act on behalf of an incapacitated individual, known as the ward, who is unable to make decisions or care for themselves due to a physical or mental incapacity. Guardianship plays a significant role in safeguarding incapacitated individuals by ensuring their personal and financial affairs are properly managed, protecting them from exploitation or neglect, and promoting their overall well-being.

Why Do I Need a Guardianship Petition?
The purpose of guardian petitions is to assess the individual’s ability to make decisions and care for themselves. To assess their overall capacity to manage their own affairs, professionals evaluate the individual’s cognitive, physical, and mental abilities.

The Role of an Elder Law Attorney in Guardianship Petitions
Elder law attorneys guide and support clients throughout the guardianship petition process by providing legal expertise and assistance. They help clients understand the legal requirements and implications of guardianship, assess the need for guardianship, prepare and file the necessary documents, represent clients in court proceedings, advocate for their interests, and ensure compliance with applicable laws and regulations. Additionally, elder law attorneys may offer guidance on alternative options to guardianship, such as living wills or supported decision-making, and help clients navigate the complexities of the legal system to ensure the best possible outcome for their specific situation.

Capacity Determinations: Assessing Decision-Making Ability
Capacity refers to an individual’s ability to understand and appreciate the nature and consequences of their actions and make informed decisions. It is the mental and cognitive ability to understand relevant information, evaluate options, and communicate choices. Capacity is relevant to an individual’s decision-making ability because it forms the basis for determining whether they have the legal competence to make certain decisions or engage in specific actions.

The Attorney’s Role in Capacity Determinations:

  • Collaborating with medical professionals and experts to assess the individual’s capacity.
  • Gathering relevant medical records, conducting interviews, and performing evaluations.
  • Presenting evidence and expert opinions in court to support or contest capacity determinations.


Elder law attorneys specializing in guardianship petitions and capacity determinations provide invaluable guidance and expertise to families and individuals navigating the complex legal landscape of guardianship. From initiating guardianship petitions to conducting capacity evaluations and advocating for the best interests of the incapacitated person, these attorneys play a pivotal role in safeguarding the rights and well-being of vulnerable individuals. By understanding their role, individuals can make informed decisions and seek the assistance they need to ensure the protection and care of their loved ones. If you need help with setting up a guardianship petition or capacity determination reach out to one of our Elder Law attorneys for assistance with your estate planning.

Michelle Finch, Managing Attorney

Bridger Dolan, Legal Intern