Order of Priority

by labrelawoffice

Deutsch: logo der tageszeitung the guardian

Deutsch: logo der tageszeitung the guardian (Photo credit: Wikipedia)

“I can’t believe this!” he exclaimed.   “I just got these papers.  My 18 year old niece just filed an action with the court to become my brother’s guardian and conservator.  I’ve been the guardian and conservator for my brother for the past ten years.  Can she do that?”

“Sure,” I said.  “But that doesn’t mean she’ll get it.”

“So, you’re saying that I have nothing to worry about?”

“Not exactly.”

His brother was in a car accident about ten years ago, which rendered him permanently incapable of caring for himself.  Both of their parents had already passed away.  In addition, his brother never made a Will or a durable power of attorney listing a preference for who should become a guardian or conservator.

I read over the petitions.  My client’s niece wrote that she was the “daughter” of the ward.

“Is this young lady in fact the daughter of your brother?”  I asked.

“Yeah, he was married before the accident, but his wife abandoned him, and took the child with her.  His wife passed away a couple years after the accident.”

“Where did the daughter go to live?”

“She went to live with her mother’s parents.”

“Child support?”  I asked.

“I sent a couple hundred dollars to her grandparents every month.”

“Is that based upon a court order?”

“No, I just did it because that’s what my brother would’ve done,”  he said.

“Did the daughter ever come around to visit?”

“No, not once,” he said.  “I don’t even know who she is, really.  All of this is completely out of the blue.”

After interviewing my client further, one of the possible motives for his niece’s sudden desire to become involved with her father wasn’t hard to guess at—they’d won about $500,000 as a result of the lawsuit for negligence that followed the accident.  And due to my client’s investments of that money, that number had grown to over $700,000.

“So, how does this work?” he asked.  “She can’t just come tromping back in and expect to win, can she?”

“Stranger things have happened.  And she’s above you in the order of priority for appointment to be the guardian and conservator.”

“What’s the order of priority?”

“Well, a person’s spouse is first in priority to become another’s guardian or conservator.   Second is the incapacitated individual’s adult child, which is where your niece comes in.  Next in line are the parents of the incapacitated individual, who in this case have already passed.  And fourth on the list is any other relative of the family, which is where you come in.  Your niece is second on the list and you’re forth.”

“But she’s never even seen him,” he said in a tone of disbelief.

“That’s a very good point.  But that’s only one factor to consider in the analysis of determining what’s in your brother’s best interests.  The fact of the matter is that we don’t know why your niece never visited your brother.  Maybe she was prevented from seeing him despite her desires.”

A jaded grin crossed his face, “Come on.  She just wants the money.”

I smiled, as the perpetual, paranoid side of my nature concerning the practice of law kicked in, “That’s only our side of the story.  That perspective alone doesn’t preclude her from asking the court to take over for you.  And once trial hits, even the moon and the stars aren’t out of reach for dreamers.  You just can’t predict with any certainty what’ll happen.”

He exhaled in deep frustration, “Jeez.  So I have to spend all this money all because my brother’s step-daughter wants to grab at the pot of gold.”

Like a Doberman Pinscher, my ears perked up, “Wait a minute, did you just say step-daughter?”


“As in, your brother isn’t the father of this young lady.”


“As in, someone else is already the father.”


“Your brother never adopted her, did he?”

“Not that I know of,” he said.

“I thought you told me she was his daughter?”

“Well, whatever,” he said with a frustrated, I-hate-nitpicky-lawyers and stop-correcting-me look on his face.  “Does it matter?”

“You bet,” I said.  “Step-children aren’t children under the probate code.  If we can prove that she’s not your brother’s daughter, then she’ll be below you in the order of priority, ultimately having the effect of making her odds of success at trial slightly above zero.”