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Role of Counsel in an Incapacity Proceeding

Many eldercare professionals have observed or have in someway been involved in an incapacity proceeding. The roles of the parties are not always clear. As a lawyer involved in over 350 incapacity proceedings the one concern/ambiguity I have always had is the role or counsel appointed for the alleged

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In practice I see courts asking counsel to perform both roles, as advocate and protector, for the alleged incapacitated person. They ask appointed counsel to assure that the petitioner has met his or her burden to provide evidence of incapacity to meet the statutory definition so that the alleged incapacitated person is treated fairly by the system. But most judges also seek appointed counsel to give their frank opinion, based on their time with the alleged incapacitated person and other due diligence, to make a recommendation if the alleged incapacitated person needs a guardian.

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